Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-18-630116-A
REVERSED AND REMANDED
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Aqueelah A. Jordan, Assistant Prosecuting
Attorney, for appellee.
M. Mancino, for appellant.
JOURNAL ENTRY AND OPINION
A. JONES, SR, JUDGE
1} Defendant-appellant, Nelson Hernandez
("Hernandez"), appeals his convictions for gross
sexual imposition and kidnapping with a sexual motivation
specification and his 18-years-to-life prison sentence.
Finding merit to the appeal, we reverse and remand for a new
2} In 2018, Hernandez was charged with two counts of
rape with sexually violent predator specifications, eight
counts of gross sexual imposition with sexually violent
predator specifications, and two counts of kidnapping with
sexual motivation and sexually violent predator
specifications. The indictment lists the dates of the
offenses from 2006 to 2012.
3} Prior to trial, the state filed a notice of
intent to use Evid.R. 404(B) evidence of prior acts,
specifically, evidence that Hernandez had sexually assaulted
a family member more than two decades prior to committing the
acts that formed the basis of his current indictment.
Hernandez filed a motion to exclude the evidence, and the
trial court held a hearing on the matter. The trial court
denied Hernandez's motion, and the matter proceeded to a
4} The following pertinent evidence was presented at
5} D.V. testified that she was currently 17 years
old and Hernandez is her grandfather. D.V. was adopted by her
parents at the age of three. D.V. testified to the following
sexual assaults. When D.V. was five, D.V.'s mother gave
birth to a child but experienced health complications so D.V.
went to stay with her grandparents. On D.V.'s first night
at her grandparents' house, while her grandmother was
away, Hernandez went into D.V.'s room while D.V. was
"half asleep." D.V. testified that Hernandez
started touching her on her breasts and buttocks and
digitally raped her. Hernandez realized D.V. was not asleep
and told her that she was only dreaming. D.V. told her
parents what had happened, but her parents did not believe
6} When D.V. was six years old, Hernandez took her
into the computer room and sexually assaulted her by touching
her vagina. When D.V. was nine years old, Hernandez sexually
assaulted her by touching her breasts and vagina. When D.V.
was ten years old, Hernandez sexually assaulted her by
inserting a piece of plastic into her vagina.
7} At some point, D.V. testified, Hernandez told her
that "something bad would happen" and "he
would hurt" either her parents or her sister if she told
anyone about the abuse. D.V. testified that all the assaults
occurred when D.V.'s grandmother was not home. She
further testified that Hernandez never forced D.V. to touch
8} The grandmother died in 2012, and D.V. testified
that Hernandez did not sexually assault her after her death.
D.V. again disclosed the abuse, this time in 2017, to a
family friend. In January 2018, D.V. told her close cousin.
Her cousin told another family member and that family member,
N.G., disclosed that she too had been sexually abused as a
child by Hernandez.
9} N.G. testified at trial. Hernandez married her
mother shortly after they moved to the United States from
Puerto Rico when she was nine years old. N.G. testified that
Hernandez sexually assaulted her from age 9 until age 17.
Hernandez forced "oral sex" on her, forcibly
touching her vagina, and forced her to touch his penis until
he ejaculated. The abuse occurred when they were alone
together and "every few weeks," but decreased as
she got older. N.G. told her mother about the abuse when she
was 18. The abuse was never reported, and Hernandez was never
charged in connection with the assaults against N.G.
10} Cleveland Police Detective Richard Durst
("Detective Durst") testified that he was assigned
the investigation into the alleged sexual assaults against
D.V. As part of his investigation, he interviewed N.G.
Detective Durst testified that when he arrested Hernandez, he
asked about N.G. According to Detective Durst, Hernandez told
the detective, "that act occurred more than 25 years
11} The jury convicted Hernandez of six counts of
gross sexual imposition with sexually violent predator
specifications and one count of kidnapping with sexual
motivation and sexually violent predator specifications.
Prior to sentencing, the state moved to dismiss the sexually
violent predator specifications. The court sentenced
Hernandez to an aggregate sentence of 18 years to life in
prison and classified him as a Tier II sex offender.
12} Hernandez filed a timely notice of appeal,
raising five assignments of error for our review. The first
assignment of error is dispositive of this appeal.
I. The trial court denied the appellant his constitutional
right to due process under the Fifth, Sixth and Fourteenth
Amendments of the United States Constitution and Article 1,
Sections 10 and 16 of the Ohio Constitution when it admitted
other acts evidence from 30 years prior as to ...