State v. Wallace , 2021 Ohio 4612 ( 2021 )

[Cite as State v. Wallace, 2021-Ohio-4612.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109847
v. :
LAWRENCE WALLACE, JR., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 30, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-635081-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Jeffrey S. Schnatter and Debora Brewer,
Assistant Prosecuting Attorneys, for appellee.
Charles Ruiz-Bueno, Co. L.P.A., and J. Charles Ruiz-
Bueno, for appellant.
EMANUELLA D. GROVES, J.:
Defendant-appellant, Lawrence Wallace, Jr. (“Wallace”), appeals his
convictions for multiple counts of rape and other felonies following a jury trial. For
the reasons set forth below, we affirm.
Procedural and Factual History
On December 12, 2018, a grand jury returned an 11-count indictment
against Wallace. The charges were three counts of rape, one count of attempted
rape, five counts of kidnapping, and two counts of gross sexual imposition. The rape
and attempted rape charges each included a furthermore specification. The
attempted rape charge included an attempted rape specification. The kidnapping
counts each included a sexual motivation specification. Finally, all counts contained
sexually violent predator specifications.
The indictment stemmed from allegations that Wallace raped or
attempted to rape three girls under the age of 13 at the time of their assaults. The
mothers of the girls are sisters, B.H., M.H., and T.H. Wallace and B.H. were in a
relationship and had two children together. The victims are B.H.’s daughter, E.P.
D.O.B. 9/14/2007, from a different relationship, M.H.’s daughter A.W., D.O.B.
3/17/2007, and T.H.’s daughter, L.B., D.O.B. 3/13/2002.
The allegations surfaced after M.H. noticed changes in A.W.’s
behavior. M.H. noticed that A.W.’s grades were slipping, dropping to C’s, from A’s
and B’s, and that A.W. had become increasingly withdrawn. Shortly after
Thanksgiving 2018, M.H. decided to talk to A.W. to find out what was going on.
When she did, A.W. disclosed that Wallace had sexually assaulted her.
M.H. immediately tried to call her sister, B.H. When she was unable
to reach B.H., she called her other sister, T.H., and told her that something had
happened to A.W. M.H. was extremely upset, crying, and screaming. M.H. ended
up hanging up and talking to A.W. further. Based on what she learned, M.H. called
T.H. again. During the second call, she told T.H. that according to A.W., Wallace
had assaulted B.H.’s daughter, E.P. as well.
Concerned, T.H. pulled her daughter L.B. into the bathroom and
asked her if anyone had touched her inappropriately or in the wrong way. L.B.
answered in the affirmative and identified the abuser as Wallace.
M.H. and her fiancé went to B.H. and Wallace’s home to confront
Wallace. B.H., who was asleep, awoke to a commotion in her bedroom. M.H. began
to tell B.H. what happened. During the commotion, E.P. disclosed that Wallace had
assaulted her too. Wallace disappeared during this time, and B.H. did not see or
hear from him again until trial.
B.H., M.H., and T.H. immediately took the girls, E.P., A.W., and L.B.
to the emergency room to be examined. They were also interviewed by a social
worker from the Child Advocacy Center. Subsequently, the police became involved
and charges were filed. Trial commenced on January 13, 2020.
The trial began with the court interviewing L.B. to determine whether
she was competent to testify. After determining that she was competent, the trial
court heard testimony in succession from L.B., her mother T.H., A.W., A.W.’s
mother M.H., and E.P.
After the conclusion of testimony on the third day of trial, three
jurors notified the court that Juror No. 2 had disclosed that he believed Wallace was
guilty. The trial court addressed the issue the following day before recommencing
the trial. Based on the statements of the three jurors, the trial court elected to
remove Juror No. 2 from the panel. Prior to doing so, the trial court addressed Juror
No. 2 and explained its decision.
The court’s bailiff escorted Juror No. 2 back to the jury room to gather
his belongings. As he was leaving, Juror No. 2 stated that he guessed he could not
joke about Wallace’s guilt. The bailiff reported this incident to the trial court, noting
that Juror No. 2 was at the front of the jury room and in a position where he could
be heard by all the jurors.
Upon learning of this additional outburst, the trial court expressed
concern that Juror No. 2’s statements had tainted the jury, especially given the
serious nature of Wallace’s charges. Wallace’s attorney orally requested a mistrial.
The trial court, along with Wallace’s attorney and the prosecutor, conducted a voir
dire of the jurors regarding the statement. Subsequently, the trial court overruled
the defense motion for mistrial.
Afterward, testimony was heard from E.P.’s mother, B.H.; Julie
Loyke, a pediatric nurse practitioner formerly at University Hospital’s Rainbow
Babies and Children’s Hospital; Ashley Martinez, an assessment specialist at
Frontline Services; Stephanie Moore, a social worker from the Cuyahoga County
Division of Children and Family Services (“CCDCFS”); and Det. Richard Durst, with
the city of Cleveland police department.
At the close of testimony, the state amended Count 1 from rape to
attempted rape; amended Count 3 from rape to gross sexual imposition; and deleted
the furthermore specification from Count 5.
The jury found Wallace guilty of one count of rape, two counts of
attempted rape, three counts of kidnapping, and two counts of gross sexual
imposition. The jury found Wallace not guilty of one count of gross sexual
imposition and two counts of kidnapping.
The trial court conducted a bench trial on the specifications attached
to the counts. The trial court found Wallace guilty on all of the sexually violent
predator specifications, and guilty of the sexual motivation specifications attached
to the kidnapping charges. The state elected to proceed with sentencing on Count
2, kidnapping; Count 6, gross sexual imposition; and Count 10, rape. The court
sentenced Wallace to life in prison without the possibility of parole on the rape
charge, 15-years-to life on the kidnapping charge, and five-year-to life on the gross
sexual imposition charge. The five-year and 15-year sentences were ordered to be
served consecutive and to be served before the remainder of the sentence.
Wallace presents the following assignments of error for review:
Assignment of Error No. 1
The trial court committed prejudicial error by denying Defendant-
Appellant’s motion for a mistrial.
Assignment of Error No. 2
Defendant-Appellant was denied a fair trial under the Cumulative
Error Doctrine where Curative Instructions were not given at trial.
Law and Analysis
In the first assignment of error, Wallace claims the trial court erred
in denying his motion for a mistrial due to juror misconduct.
The decision to grant or deny a motion for mistrial lies within the
sound discretion of the trial court. State v. Miller, 8th Dist. Cuyahoga No. 100461,
2014-Ohio-3907, ¶ 36, citing State v. Garner, 74 Ohio St.3d 49, 656 N.E.2d 623(1995). We will not disturb that “exercise of discretion absent a showing that the
accused has suffered material prejudice.” Id., citing State v. Sage, 31 Ohio St.3d 173,
510 N.E.2d 343 (1987). A mistrial is only warranted when “the ends of justice so
require and a fair trial is no longer possible.” Id., citing State v. Franklin, 62 Ohio
St.3d 118, 127, 580 N.E.2d 1 (1991).
When the basis for a mistrial is juror misconduct, it must be
determined (1) whether misconduct actually occurred and (2) whether the
misconduct materially prejudiced the defendant’s substantial rights. Elsner v.
Birchall, 2018-Ohio-2521, 114 N.E.3d 791, ¶ 12 (8th Dist.).
In the instant case, after the end of testimony on the third day of trial,
three jurors reported that Juror No. 2 told them that he had made up his mind about
the case. The trial court and the parties discussed the issue before leaving for the
day. The trial court addressed the issue on the record the following morning. Based
on the statements of the three jurors and discussion with counsel, the trial court
elected to talk to the four jurors but was inclined to replace Juror No. 2 with an
alternate.
A trial judge is empowered to remove a juror and replace the juror with
an alternate whenever facts are presented that convince the trial judge
that the juror’s ability to perform his or her duty — including the duty
to be impartial — is impaired.” State v. White, 1st Dist. Hamilton No.
C-150250, 2016-Ohio-3329, ¶ 32.
State v. Blanton, 8th Dist. Cuyahoga No. 109294, 2021-Ohio-65, ¶ 25.
Before Juror No. 2 left, Wallace’s counsel asked him to explain what
he said. The following testimony occurred:
DEFENSE COUNSEL: What exactly did you say, what was the joke?
JUROR NO. 2: I said that it was gonna snow.
DEFENSE COUNSEL: Huh?
JUROR NO. 2: So that I’m not gonna come back downtown, I’ll give
you – write you down piece [sic] of paper he’s guilty and –
THE COURT: Okay.
JUROR NO. 2: I was joking.
Tr. 503.
Juror No. 2 was then escorted back to the jury room to get his
belongings. However, when Juror No. 2 was leaving, and before the trial court could
talk to the remaining jurors, Juror No. 2 repeated his statement in such a way that
the entire jury panel might have heard it.
The trial court noted:
THE COURT: So, the new revelation is that this juror went to get his
phone and he made another comment to the jurors saying: I guess I
can’t joke about his guilt.
Tr. 504.
Given the serious nature of the charges, the trial court, along with
counsel, questioned the entire panel of jurors. The trial court first ascertained
whether or not each juror heard Juror No. 2’s remarks and the circumstances under
which the juror heard them. After getting the basic facts from each juror, the court
allowed counsel to question each juror. Counsel questioned the jurors about the
impact of Juror No. 2’s statements and their ability to fairly try the case based on
what they had heard or based on the knowledge that some misconduct had occurred.
In doing so, the trial court learned that not every juror heard Juror No. 2’s
statements. Those who did, indicated they were not influenced by Juror No. 2’s
statements. Furthermore, the jurors indicated they would still be able to be fair and
impartial. After hearing the jurors’ answers, the trial court denied Wallace’s motion
for mistrial. The trial court stated:
THE COURT: I was not confident going in, but I am confident now,
having heard each of them, that they will follow the rules, I think, if
anything, there’ll probably be a heightened awareness at this point.
I understand why you’re asking [for a mistrial] and I totally respect you
for doing it. It’s something you should do. But I don’t think that this
rises to discharging a whole jury.
Tr. 574.
The trial court undertook measures to determine whether
misconduct materially affected the defendant’s substantial rights by questioning the
jury. Certainly, the defendant has a right to be tried by a fair and impartial jury.
Blanton, 8th Dist. Cuyahoga No. 109294, 2021-Ohio-65, at ¶ 25, citing State v.
Whitmore, 8th Dist. Cuyahoga No. 78035, 2001 Ohio App. LEXIS 1999, 7
(May 3, 2001). Upon completion of the voir dire of the jury, the trial court found
that the jury was not prejudiced by the misconduct of Juror No. 2. “‘The trial judge
is in the best position to determine the nature of the alleged jury misconduct and the
appropriate remedies for a demonstrated misconduct.’” State v. Hickman, 9th Dist.
Summit No. 27321, 2015-Ohio-4668, ¶ 39, quoting State v. Wharton, 9th Dist.
Summit No. 23300, 2007-Ohio-1817, ¶ 25. After the trial judge’s thorough review
and appropriate response to the misconduct, we cannot say that the trial court
abused its discretion when it denied Wallace’s motion for a mistrial.
Wallace’s first assignment of error is overruled.
In the second assignment of error, Wallace argues that he was denied
a fair trial under the cumulative error doctrine due to the trial court’s failure to make
any curative instructions.
Under the cumulative error doctrine, “‘a conviction will be reversed
where the cumulative effect of errors in a trial deprives a defendant of the
constitutional right to a fair trial even though each of numerous instances of trial
court error does not individually constitute cause for reversal.’” (Emphasis sic.)
State v. Chesler, 11th Dist. Geauga No. 2014-G-3181, 2015-Ohio-711, ¶ 48, quoting
State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987), paragraph two of the
syllabus. The doctrine is only applicable when “the record reveals numerous
instances of trial court error.” (Emphasis added.) Id., citing DeMarco at id., and
State v. Webb, 70 Ohio St.3d 325, 335, 638 N.E.2d 1023 (1994).
Wallace argues that the trial court erred in failing to give curative
instructions after it sustained several of his objections; however, the responsibility
to request curative instructions lies with the defendant. “When defense counsel fails
to request a curative instruction, any error in the trial court’s failure to give one is
waived.” State v. Freeman, 8th Dist. Cuyahoga No. 91842, 2009-Ohio-5218, ¶ 23.
In the instant case, because Wallace failed to request a curative
instruction, he has waived the issue on appeal. Additionally, because the failure to
request a curative instruction is not an error attributed to the trial court, the
cumulative error doctrine does not apply. Chesler at ¶ 48.
Moreover, Wallace’s constitutional rights were not violated by the
objectionable evidence.
Wallace objected ten times, and the trial court sustained each
objection. Most of the testimony was hearsay; however, its admission was harmless
because it was duplicative of other admissible evidence. “The Ohio Supreme Court
has held that the erroneous admission of inadmissible hearsay that is cumulative to
properly admitted testimony constitutes harmless error.” Peffer v. Cleveland Clinic
Found., 8th Dist. Cuyahoga No. 94356, 2011-Ohio-450, ¶ 28, citing State v.
Williams, 38 Ohio St.3d 346, 528 N.E.2d 910 (1988).
Wallace also objected to the testimony of Stephanie Moore
(“Moore”). Moore, a social worker with CCDCFS, testified about A.W.’s and E.P.’s
emotional state after the sexual assault. Moore was permitted to testify that both
girls were ashamed because they could not protect themselves from Wallace. She
also testified that they both told her that Wallace, a grown man, was stronger than
them. This testimony was hearsay, and it was not cumulative as neither A.W. nor
E.P. gave this testimony.
Finally, the rest of the testimony Wallace referenced was harmless.
Wallace’s counsel objected in the midst of the witnesses’ answers prior to the
admission of objectionable hearsay testimony.
As illustrated, the errors, individually and collectively, were
harmless. Even if all the offending testimony was excised from the trial, there was
overwhelming evidence of Wallace’s guilt.
Accordingly, we overrule Wallace’s second assignment of error.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed; any bail pending is terminated. Case remanded to
the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EMANUELLA D. GROVES, JUDGE
LISA B. FORBES, P.J., and
EILEEN T. GALAGHER, J., CONCUR