State v. Hernandez

[Cite as State v. Hernandez, 2018-Ohio-738.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 104976 STATE OF OHIO PLAINTIFF-APPELLEE vs. ALFONSO E. HERNANDEZ DEFENDANT-APPELLANT JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-601004-A BEFORE: Kilbane, P.J., Stewart, J., and Celebrezze, J. RELEASED AND JOURNALIZED: March 1, 2018 ATTORNEY FOR APPELLANT Brian R. McGraw 55 Public Square, Suite 2100 Cleveland, Ohio 44113 ATTORNEYS FOR APPELLEE Michael C. O’Malley Cuyahoga County Prosecutor Frank Romeo Zeleznikar Assistant County Prosecutor The Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 MARY EILEEN KILBANE, P.J.: {¶1} Defendant-appellant, Alfonso E. Hernandez (“Hernandez”), appeals his jury conviction for rape, kidnapping, and gross sexual imposition. For the reasons set forth below, we affirm. {¶2} In December 2015, Hernandez was charged in an eight-count indictment with two counts of rape, four counts of kidnapping, and two counts of gross sexual imposition (“GSI”). Each count carried a sexually violent predator specification. The indictment alleged that Hernandez sexually assaulted two young girls: his great-niece, K.T., and her cousin, M.R. {¶3} In May 2016, Hernandez moved to sever Counts 1 through 4 from Counts 5 through 8, effectively moving for separate trials on the allegations of each victim. The trial court denied this motion. Prior to jury selection, and again after the close of all evidence, the defense renewed its motion to sever and the trial court denied the renewed motion. The parties stipulated that Hernandez’s immigration status would not be mentioned in the presence of the jury. {¶4} The following evidence was adduced at trial. Allegations of K.T. {¶5} Twelve year-old K.T. described in detail two separate instances where she testified that Hernandez sexually assaulted her. K.T. testified that the first sexual assault occurred when she was about five years old. At that time, she lived with her parents in the downstairs unit of a triple house. K.T.’s grandmother and great-grandmother lived in the second floor unit. Hernandez, as well as K.T.’s other great-uncle and his wife, J.H., lived upstairs in the third floor unit. {¶6} K.T. explained that the first instance of sexual assault took place while she was visiting the third floor unit of the home with her mother, N.H. N.H. went into the living room to talk with J.H. Hernandez called K.T. to his room, telling her that he had something to show her. She explained that once inside Hernandez’s room, Hernandez proceeded to lay her on the bed, pull down her pants and his own pants, put a condom on, and put his penis inside her vagina. {¶7} K.T. testified that at some point, J.H. began knocking on the door, telling K.T. that her mother was waiting and wanted her to come out of the room. K.T. explained that Hernandez took off the condom and pulled up his pants and K.T.’s pants. He then gave K.T. a small toy, told her “not to tell anyone,” and sent her out of the ...

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