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State v. Perez

Court of Appeals of Ohio, Eighth District, Cuyahoga

January 16, 2020

STATE OF OHIO, Plaintiff-Appellee,
JEZEEL ACOSTA PEREZ, Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-632418-A


          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Gregory Paul, Assistant Prosecuting Attorney, for appellee.

          Michael E. Stepanik, for appellant.



         {¶ 1} Defendant-appellant Jezeel Acosta Perez ("Perez") appeals his convictions and asks this court to reverse his convictions and remand for a new trial. We affirm.

         {¶ 2} Perez was convicted of domestic violence, a fourth-degree felony, in violation of R.C. 2919.25; and endangering children, a fourth-degree felony, in violation of R.C. 2919.22(A). Perez was sentenced to 120 days in jail and placed on two years of community control.

         I. Facts and Procedural History

         {¶ 3} On the morning of August 25, 2018, Perez and his 16-year-old stepson, V.S., went to the barbershop and Walmart. Upon returning home, V.S. noticed that his little brothers had opened a box of Legos that Perez had previously told the children not to touch. V.S. stated that the Legos were kept in his 11-year-old sister's, J.G., top dresser drawer. Once Perez saw the children playing with the Legos, V.S. stated that Perez grabbed J.G., placed her on the couch, and began hitting her on her back multiple times with a closed fist.

         {¶ 4} V.S. stated that J.G. was screaming and crying until their mother Jesica, Perez's wife, ran into the living room. According to VS., Jesica told Perez to let J.G. go, but when he did not, Jesica punched Perez in the eye. Jesica grabbed J.G. and took her into the master bedroom and attempted to shut the door, but Perez went after them. As Perez attempted to grab Jesica, V.S. got in between Perez and Jesica, which allowed Jesica and J.G. to run to the bathroom. According to V.S., Perez followed them into the bathroom and grabbed J.G. by the neck from the back. V.S. testified that Jesica pushed Perez away and Perez almost pushed Jesica into the bathtub. V.S. then tried to separate Perez and Jesica, but Perez pushed him away. Jesica then tried to run into V.S.'s room, but Perez grabbed Jesica by her neck, pulled her down to the ground, and began hitting her.

         {¶ 5} V.S. grabbed Perez and placed him in a choke hold so that Jesica and J.G. could escape out of the house. Jesica and J.G. ran downstairs to the neighbor's residence, while V.S. held Perez. Once V.S. let Perez go, V.S. testified that Perez ran after Jesica. After a discussion between Jesica and Perez, Perez left the home. Later on that evening, Perez, according to V.S., told Jesica that she must either "choose your son or you choose me." (Tr. 266.)

         {¶ 6} J.G. then testified that when Perez and V.S. returned from getting haircuts and Walmart, Perez saw that the children were playing with his Legos. Perez grabbed her arm, turned her over and with a regular hand started hitting her on her butt and with his fist on her back. (Tr. 278.) J.G. stated that Jesica told Perez to stop, and when he did not, Jesica hit Perez. Thereafter, J.G.'s testimony was similar to V.S.'s testimony regarding Perez chasing her and Jesica throughout the home until they were able to run outside. After the entire altercation, J.G. testified that the family went to church to decorate for the Pastor's anniversary. J.G. complained to Jesica that her back hurt. The next morning, Jesica took J.G. to the hospital because J.G. stated that her back still hurt. At the hospital, pictures and X-rays were taken of J.G.'s back. J.G. stated that her back had bruises for a week.

         {¶ 7} Perez testified that when he and V.S. returned home from the barbershop and Walmart, he saw the younger children playing with his Legos, and J.G. was in the living room watching television. Perez testified that he observed several damaged boxes and thousands of Legos on the floor. Perez had purchased the retired Lego sets as an investment. Perez planned on keeping the Legos until their value increased and use the profits for a down payment on a house for the family.

         {¶ 8} When Perez asked J.G. about the children playing with the Legos, he felt as if she was lying to him. This upset Perez, and he commenced with physically disciplining her. According to Perez, he only struck J.G. on her buttocks, and as he was spanking J.G., Jesica came out of the bedroom and punched Perez in the head about four to six times. Perez stated that he only pushed Jesica away from him to stop her from punching him in the head. He also stated that after Jesica told him to stop hitting J.G., he stopped when he realized that he hit her more than he should have.

         {¶ 9} Perez was charged with three counts of domestic violence and two counts of endangering children. At the end of the state's case, the defense's motion for acquittal as it pertains to Counts 4 and 5, domestic violence and endangering children against V.S., was denied. At the conclusion of the trial, Perez's motion for acquittal pursuant to Crim.R. 29 was again denied. After a review of the jury instructions with counsel, the trial court reversed its decision as it pertained to Count 4. The trial court granted Perez's motion for acquittal for the domestic violence charge against V.S. Perez's counsel did not request a jury instruction for parental discipline. Additionally, the trial court did not provide a parental discipline jury instruction to the jury. Perez was found guilty of one count of domestic violence and one count of endangering children, both counts related to J.G. The jury found Perez not guilty on the remaining charges. Perez filed this appeal assigning two errors for our review:

I. Appellant was denied the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments to the U.S. Constitution and Article I, Section 10 of the Ohio Constitution when defense counsel failed to assert the affirmative defense of parental discipline and request the corresponding jury instruction; and
II. The trial court committed plain error by failing to give the jury instructions regarding the affirmative defense ...

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