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State v. Hernandez

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 19, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
NELSON HERNANDEZ, Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-630116-A

         JUDGMENT: REVERSED AND REMANDED

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

          Brett M. Mancino, for appellant.

          JOURNAL ENTRY AND OPINION

          LARRY 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 trial.

         {¶ 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 jury trial.

         {¶ 4} The following pertinent evidence was presented at trial.

         {¶ 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 her.

         {¶ 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 him.

         {¶ 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 ago."

         {¶ 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.

         Assignments of Error

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 ...

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