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State v. Erker

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 8, 2019

STATE OF OHIO, Plaintiff-Appellee,
RAYMOND A. ERKER, Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-627482-A


          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Carson Strang, Assistant Prosecuting Attorney, for appellee.

          Paul Daiker Law, L.L.C., and Paul B. Daiker, for appellant.


          MARY J. BOYLE, JUDGE.

         {¶ 1} Defendant-appellant, Raymond A. Erker, appeals his convictions. He raises nine assignments of error for our review:

1.The defendant was denied federal and state due process under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution when he was convicted on evidence that was insufficient as a matter [of] law to sustain a conviction for burglary in count one.
2.The defendant was denied federal and state due process under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution when he was convicted on evidence that was insufficient as a matter [of] law to sustain a conviction for menacing by stalking in count two.
3.The defendant was denied federal and state due process under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution when he was convicted on evidence that was insufficient as a matter [of] law to sustain a conviction for telecommunications harassment in count three.
4. The trial court erred as a matter of law and to the prejudice of appellant by denying appellant's motion for judgment of acquittal, as to counts one, two and three of the indictment, pursuant to Crim.R. 29(A).
5.The judgments of conviction as to all counts are against the manifest weight of the evidence.
6. The trial court erred by allowing irrelevant and/or unfairly prejudicial alleged text communications that were outside the dates of the indictment to be presented to the jury.
7.The trial court erred to the prejudice of the defendant by allowing extensive prosecutorial misconduct during closing argument.
8.The trial court abused its discretion to the prejudice of the defendant by allowing testimony about the defendant's pretrial ankle bracelet to be admitted into evidence, as well as the trial court's failure to give a sufficient curative instruction and/or the [trial] court should have granted defendant's motion for new trial regarding the same.
9. The trial court erred to the prejudice of appellant by providing confusing, misleading and prejudicial jury instructions, thus creating confusion and the possibility of burden shifting, in violation of appellant's state and federal constitutional rights to due process of law, as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Section 10 of the Constitution of the state of Ohio.

         {¶ 2} Finding no merit to his assignments of error, we affirm.

         I. Procedural History and Factual Background

         {¶ 3} In April 2018, a Cuyahoga County Grand Jury indicted Erker for one count of burglary in violation of R.C. 2911.12(A)(1), a felony of the second degree; one count of menacing by stalking in violation of R.C. 2903.211(A)(1), a felony of the fourth degree; and one count of telecommunications harassment in violation of R.C. 2917.21(A)(5), a felony of the fifth degree.[1] Erker pleaded not guilty to the charges. The trial court subjected Erker to GPS monitoring as part of his bond.

         {¶ 4} The case proceeded to a jury trial in August 2018, where the following evidence was presented by the state.

         {¶ 5} Erker married G.S., the victim, in October 2012. G.S. worked for the congregation of St. Joseph since 2003, and Erker was the chief executive officer for a water treatment company.

         {¶ 6} Both Erker and G.S. had children from previous marriages: Erker had three children, and G.S. had two daughters, C.S. and S.S. G.S. and her daughters moved into Erker's home in Avon Lake, Ohio in 2013. After adding an addition onto the home, Erker put the house in his and G.S.'s name.

         {¶ 7} G.S. described her relationship with Erker as "up and down" and "contentious from the very start." She said that both her daughters had "up and down" relationships with Erker as well. G.S. tried counseling with and without Erker.

         {¶ 8} G.S. said that in 2013, Erker filed for divorce. She also agreed that Erker filed for divorce two more times throughout their marriage.

         {¶ 9} In June 2016, G.S. separated from Erker, and she and her daughters moved out of Erker's home. G.S. said she moved out because "[t]here was just a lot of animosity, a lot of abuse, every kind, a lot of emotional [abuse], and [she] finally made the decision that it was enough." Prior to moving out, G.S. received a text message from Erker that read: "Sign the house over and leave. I'll fucking kill you. Like end your life. I will murder you. Like end your life. I will murder you. Dead." G.S. responded to the text, saying, "I'll be sure to keep these." Erker responded, "Dead."

         {¶ 10} G.S. moved in with her sister, K.H.J., who lived in Medina, and G.S. stayed with her for three months.

         {¶ 11} G.S. said that Erker knew she moved in with her sister and stated that despite moving out, Erker "never stopped" trying to contact her and that there was an "incalculable" amount of phone calls from him. G.S. admitted to trying to reconcile her relationship with Erker on numerous occasions and that she spoke with Erker consensually at times. She explained:

That time period was very difficult for me. I was very confused. I wouldn't say that I was trying to get him back; I was trying to figure out what was going on and what to do with the rest of my life. I didn't have a place to live. I was trying to be a parent to my daughters. There was communication and there was a period of time where I was vacillating.
I'd invested a lot in the relationship. I was very close to his children. I loved them. I was their mother for many years. I did things for them that their own mother didn't do. I'd built a family while we were married and my children were close to his children. Everybody had gone through the process of becoming a family so I was weighing everything, all decisions, very, very carefully and trying to figure out if this could be salvageable.

         {¶ 12} During this time, K.H.J. found framed photographs and three vases of flowers in her garage that Erker had left. There were photographs of G.S., Erker, and the children and a vase for G.S., C.S., and S.S. G.S. stated that when she found out about the flowers and photos, she was "angry that he once again crossed a boundary and brought them to [her] sister's [house] when he knew they would not want him there." G.S. said that she never invited Erker to her sister's house.

         {¶ 13} Also during the time that G.S. was living with her sister, Erker came to G.S.'s work uninvited to "deliver a new McIntosh computer." G.S. explained that Erker "had smashed and destroyed the three that [they] had at home and so he bought a new one and showed up unannounced and brought it into [her] work and gave it to [her] there." She said that Erker wrote on the back of the computer's packaging, "I was jacked up." G.S. explained that at that time "she was still trying to not bring [her] coworkers into it" and so instead of making a scene, she walked him outside and told him not to come to her work anymore. Despite that, G.S. said Erker showed up to her work again (although the date is not clear). She described one incident as follows: "He came in * * * when I was in the dining room having lunch with my coworkers and I saw him looking for me so I kind of moved behind one of my coworkers and he didn't find me and I think he left."

         {¶ 14} In July 2016, G.S. invited Erker to attend a religious retreat with her, thinking that they could reconcile their relationship. Also during that month, G.S. invited Erker to go visit her uncle in Florida because her uncle had been divorced several times and "thought maybe he could counsel [them]." They, however, did not ultimately go to Florida.

         {¶ 15} In September 2016, G.S. rented a house in Strongsville. At one point, G.S.'s landlord forwarded her an email that he had received from Erker on August 19, 2016, approximately one month before G.S. moved in, that - according to G.S.'s testimony[2] - read:

[Landlord, ] This is Ray Erker, [G.S.'s] husband. We need to speak ASAP. Gina is not of sound mind and will not be able to pay you as promised. You are one of many that she has committed to that she cannot and will not pay. She is not well and cannot afford her place on Ash Drive in Strongsville for $1, 800 a month.
Furthermore, I am not a gambler, never have been, and am in no way financially irresponsible. I am a successful and prominent business owner and have in no way contributed to [G.S.]'s bankruptcy. In fact, if you check your records, you will see that she filed for bankruptcy in 2010. We were not even married until 2012. Additionally, she divorced her previously financially solvent husband * * * years earlier, so it was not his fault either.
Please be advised that we are currently involved in legal proceedings and any contracts signed during this time will also be subject to subpoena and investigation. Please feel free to contact me directly at [Erker's phone number].

         G.S. stated that she had no idea how Erker knew that she was moving into the Strongsville home and that she never gave Erker her landlord's email address.

         {¶ 16} On November 6, 2016, Erker showed up at G.S.'s home around 8:00 p.m. and walked around the house looking into the home. G.S. said she did not invite Erker over. G.S. said she was afraid because Erker was "extremely unpredictable and volatile" and she did not know "if he would break in." G.S. and her daughters went upstairs to hide in a bedroom and called 911. Officers responded to G.S.'s residence and spoke with Erker and G.S. Officer Jacob Knipp testified that G.S. said she did not want Erker at the residence and that officers told him that she did not want him there. Officers stayed at the scene until he left. G.S. felt trespassed against because Erker was "not respecting any boundaries and showing up whenever he wanted."

         {¶ 17} According to G.S., after that incident, Erker "was actively professing love and [saying] that [they] need to stay married and work on [the marriage] and go to counseling." Erker, however, told G.S. that he was having an affair with another woman, which, according to G.S., was to make her jealous and "panic that he would be moving on."

         {¶ 18} On December 25, 2016, Erker showed up at G.S.'s home after midnight and entered with a copy of the key to her house. G.S. stated that she did not give him a copy of that key. G.S. called 911, and Erker left before officers arrived.

         {¶ 19} Officers responded to G.S.'s residence around midnight based on a report that Erker was trying to get into her house and that he was not welcome there. G.S., who was still hiding in the bathroom when officers arrived, was "obviously scared" according to the officers. Officer Aaron Plut testified that G.S. was "visibly upset," "crying," and "appeared to be stressed." G.S. told Officer Plut that Erker made a copy of a key to her residence without her permission and that he used it to enter her house. Officers stated that G.S. showed them her phone and that there was an earlier message from G.S. inviting Erker to come over, but that Erker showed up "much later than she was expecting." Officer Plut testified that based on G.S.'s reaction, Erker was clearly not invited to come to the house at the time he did. G.S. did not complete a statement regarding the incident, but told officers that she did not want Erker to return to her residence.

         {¶ 20} After receiving information that Erker left the residence, Officer Knipp testified that he went to intercept Erker on his ride home and conducted a traffic stop of Erker's vehicle. Officers confiscated the key to G.S.'s residence that Erker had and returned the key to G.S.

         {¶ 21} G.S. stated that after that incident, she attempted to reconcile with Erker and started having consensual conversations with him in January 2017. In fact, during that month, G.S. invited Erker to a marriage retreat as well as to attend an event at the Music Box Supper Club. In February 2017, G.S. invited Erker to go see two concerts for the upcoming summer months.

         {¶ 22} On April 2, 2017, Erker asked G.S. if he could come to her house so that they could talk about their relationship. G.S. described their discussion as follows:

It started with talking and it progressed, as it always did, to him immediately pressuring me and demanding when I was going to be moving back home. At that point I looked and said, I'm in no way ready to commit to moving back home.
It was like someone flipped a switch and he completely changed and he came at me and grabbed me by * * * both wrists and said, This is what you might as well be doing to me, and he started to hit himself in the face * * * with my fists and he had such a tight grip on me I couldn't break free so the only thing I could think to do was to drop, like drop kind of like a toddler drops with their weight, drop to the ground.
When I did, my knees were up and he dropped in front of me to his knees and started slamming his face into my knees and I had bruises on my knees and on my wrists from that encounter. He then called me the C word. He spit in my face.

         {¶ 23} C.S. was home during the incident and testified that Erker screamed at G.S., called her names, and spit on her. C.S. said that G.S. was sobbing and that she was scared for her and her mother and so she called 911. Officers arrived on scene and spoke with both parties. Officer Fields testified that he noticed a "small superficial mark" on Erker's nose, but that Erker told him that "it was not related to anything" and "had nothing to do with that incident." Officer Fields said he told Erker not to return to G.S.'s home. He also testified that he told Erker that if he returned, he could face criminal charges.

         {¶ 24} Officer Fields said that later that day, Erker came to the police station and said he "wanted to make a charge that [G.S.] had injured him[, ]" pointing to the injury on his nose. Erker made a statement saying that he came to G.S.'s house unannounced and uninvited and that he shows up there unannounced and uninvited "frequently." Erker alleged that G.S. let him into the home and that things escalated and that G.S. struck him with her fist and knee on his face. Officer Fields testified that he contacted G.S., who subsequently gave a statement regarding the incident. Officer Fields stated that Erker ultimately decided not to pursue charges.

         {¶ 25} G.S. stated that after that incident, she went with Erker to watch one of his children's hockey games in Pittsburgh in May 2017, and she admitted that she stayed in the same hotel room with him.

         {¶ 26} On May 16, 2017, Erker placed a box on G.S.'s mother's doorstep that had the following written on it: "Hi [G.S.'s mother]. I don't know what I did with your address and this was too important to wait. Please call me once you've had a chance to review. Thank you for listening. Ray." G.S. described the box's contents as follows:

Ten, 15 different brown paper envelopes all with a different theme, all with red writing on them, and inside was just all different kinds of materials. Some were about - lots of research he had done into borderline personality disorder or bipolar disorder or whatever he was trying to convince others that I had at the time and there was highlighter and circles and underlines and arrows pointing to things, and tabs. The amount of material that was in this box must have taken weeks to compile.
There was also four books, all of the same title. The title * * * was I Hate You - Don't Leave Me. It was some sort of self-help book and on each book there was a Post-It note that had my [three] siblings' names on them and I suppose my mother. There was direction for my mother to pass these books to my siblings so that he could try to convince my family of things.
There was a copy of a DVD. I believe the movie is What Dreams May Come which is a Robin Williams movie about his wife committing suicide and going to hell and him saving her somehow. The amount of material that was in this box was unbelievable.
There was also an envelope that had photos of other women and his communications with those women and a photo of himself and on the front of the envelope it said, I don't need [G.S.]; I want [G.S.]. I love her. This was supposed to show my family how in demand he was with other women.

         {¶ 27} The envelopes had "titles" such as "Ray and [C.S.]," "Background and History * * * This says it all," "There's Hope! This makes all the difference! It's never too late to live happily ever after," "This is why I'm still here and then there's this. This makes it all worth it," "Where did this come from? These broken promises left me in confusion? I'm not [G.S.]'s enemy," "I think I am fun[.] I think we do a lot for [G.S.] to insinuate I'm boring and that she'll go with younger guys on Facebook destroyed me and was soooo [sic] hurtful," and "Here's where [G.S.]'s refusal to deal with past trauma's [sic] is ruining her present happiness and now and [her] 2nd marriage and 5 kids['] lives." All of the envelopes contained pictures of text messages between G.S. and Erker and other things relevant to their relationship. Most of the items had handwritten notes from Erker.

         {¶ 28} One of the envelopes had the following written on it: "If I'm wrong, then how do you explain all this? If this isn't enough of a wakeup call then let's go through the box I left your mom! Trust me, I'm not wrong about this." Inside that envelope was a multiple-page handwritten letter telling G.S. that she suffered from borderline personality disorder as well as extensive articles discussing borderline personality disorder with handwritten notes indicating that G.S. had the disorder.

         {¶ 29} G.S. said that she was never diagnosed with borderline personality disorder, but explained that Erker, who was not a medical professional, told "anyone who would listen," including her sister, mother, and children, that G.S. suffered from borderline personality disorder.

         {¶ 30} G.S. was outraged by the contents of the box and said that it caused her great distress. She felt that he was trying to turn her family against her, but was also trying to remind her of the good times.

         {¶ 31} On May 30, 2017, Erker and G.S. dissolved their marriage in Lorain C.P. No. 17NF082768. In July 2016, before the dissolution, G.S. had transferred her interest in Erker's Avon Lake house back to Erker. She testified that she did not want anything to do with the house, Erker did not pay a portion of the value of the home to her, and she did not receive any consideration for the home. She also explained that as part of the dissolution, she did not ask for Erker to pay alimony.

         {¶32} In June 2017, G.S. went to the Strongsville Police Department to make a complaint, telling officers that "she did not want to pursue any charges but * * * wanted to document some behavior issues with Mr. Erker following her, calling her, texting her, unwanted even though she asked him to cease and desist." Officer Fields testified that he called Erker based on the complaint and that Erker said "he would comply with [G.S.'s] wishes." Officer Fields testified that he received another complaint from G.S. soon after the first one and that he tried to get ahold of Erker again, leaving a voicemail telling Erker to leave G.S. alone and not to show up at places where she might be. He also told Erker that G.S. did not wish to pursue charges even though the police would typically pursue charges after a person fails to adhere to instructions not to contact another person.

         {¶33} From July 2017, until December 2017, G.S. and Erker went on a vacation to Hocking Hills and attended a number of events together, including a relationship seminar, an Italian festival, and a concert. During that time, G.S. also asked Erker for financial assistance regarding C.S.'s tuition and Christmas presents. In October 2017, G.S. also invited Erker to attend another concert.

         {¶ 34} However, in late December 2017, G.S. decided that her relationship with Erker was finally over, and in January 2018, G.S. said she informed Erker that it was over and that he did not take it well. She said that he "panicked and escalated which is what he always did." G.S. also retained an attorney in January 2018.

         {¶35} During this time, G.S. testified that Erker began texting her from numerous fake phone numbers. G.S. explained that Erker "had an app where he could create dozens and dozens and dozens of fake phone numbers from which to text [her] from." Even when G.S. blocked the phone numbers, Erker would create new ones. She stated that Erker initially sent her a number of "fake" emails and created new email accounts when she would block others, but that he eventually switched to the "phone number situation." She also testified that Erker "would deluge [her] with overnight messaging because he knew he could get [the messages] through before [she] would block the number and [she] would wake up to sometimes 40 or 50 [messages]." She said that he also left messages for her at work that filled up her work phone line's voicemail.

         {¶ 36} The state presented screenshots that G.S. took of the texts that Erker sent, which included messages such as:

- So much for you NOT uprooting your kids again! You are literally straight crazy! Goodbye[.]
- Don't come crying when I move on this time[.] I've been more than patient & you've completely over reacted [sic] I've been more than patient[.]
- Seriously?! Damn it [G.S.]! What is your freakin [sic] game plan? Let me ask you this… How's your current approach to life working for you so far?
- FUUUUUUUUUUCK YOOOOOOOUUU! I don't deserve this shit!

         {¶37} The above messages were sent from various phone numbers. In response to the above messages, G.S. informed Erker to "cease and desist" from contacting her. G.S. explained that she told Erker to "cease and desist from contacting her" because her attorney advised her to do that once she began to seek a civil protection order.

         {¶38} The state also presented screenshots that G.S. provided showing pages and pages of phone numbers calling her "crazy" and a "horrible human being" as well as her responses to many of the phone numbers to "cease and desist" from contacting her. It also introduced 35 pages of screenshots from G.S.'s phone, showing she blocked what appears to be over one hundred phone numbers as well as numerous email addresses.

         {¶39} Further, the state presented messages from Erker where he stated that he would "knock her out" "without a second thought," indicated that he was following her by asking whose car was at her apartment and telling her what time she worked until, threatened to contact her boss, and told her she was crazy. In response to a number of texts, G.S. responded "Stop contacting me. It's over. I AM DONE. DO NOT ESCALATE. DO NOT CALL MY WORK ANYMORE. DO NOT SHOW UP ANYWHERE. IT IS OVER. I CANT [sic] BE MORE CLEAR OR MORE CERTAIN." She also responded to more texts from Erker, telling him to "Stop creating new phone numbers and let it go." G.S. then basically stopped responding to Erker's messages.

         {¶40} Despite this, Erker continued to contact G.S. sending multiple text messages. He stated, "Great news is, now, I've earned so many free points - [I] can get a new line for 1 month for just - $1." He also texted her, "I'm not going away -get ahold of me or I'm telling everyone - everything]."

         {¶ 41} C.S. testified that she also blocked Erker's phone number and that he contacted her through false phone numbers.

         {¶42} On January 24, 2018, G.S. requested a civil protection order. She attended a hearing with her attorney, and the domestic relations court ...

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