State v. Rivera , 2023 Ohio 1788 ( 2023 )

[Cite as State v. Rivera, 2023-Ohio-1788.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 22CA011875
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
EDWIN RIVERA COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellant CASE No. 20CR102174
DECISION AND JOURNAL ENTRY
Dated: May 30, 2023
STEVENSON, Judge.
{¶1} Defendant-Appellant Edwin Rivera appeals from his convictions in the Lorain
County Court of Common Pleas. This Court affirms.
I.
{¶2} A grand jury indicted Mr. Rivera on one count of rape in violation of R.C. 2907.02,
a felony of the first degree, and one count of gross sexual imposition in violation of R.C. 2907.05,
a felony of the fourth degree. The charges stemmed from a July 13, 2019, incident that occurred
in a Lorain County residence.
{¶3} The victim, N.D., testified that in 2019 she was 14 years old and living with her
grandparents (“Grandparents”). N.D. lived with Grandparents after being removed from the
homes of her biological mother and biological father.
{¶4} The family scheduled a reunion for the weekend of July 12, 2019, at Grandparents’
house. Mr. Rivera travelled with his sister and brother-in-law from Philadelphia to Lorain and
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planned to stay at Grandparents’ house for the weekend. During his stay, Mr. Rivera used the
second-floor guest bedroom across the hallway from N.D.’s room.
{¶5} On July 13, 2019, several family members came to Grandparents’ house for a party.
Mr. Rivera drank alcohol at the party. Mr. Rivera acknowledged that, at the party, he hugged and
kissed N.D. on the neck.
{¶6} While N.D. briefly attended the party, she testified that she does not like crowds
and that she stayed in her room throughout most of the party. N.D. left the party and went back
upstairs to her bedroom “around like 5:00 or 6:00” p.m.
{¶7} The party was still going on when Mr. Rivera left to go to his room. Mr. Rivera
testified that he went right to sleep when he returned to the second-floor guest bedroom.
{¶8} N.D. testified that she heard Mr. Rivera come upstairs and go into the guest
bedroom. N.D. went into the guest bedroom to talk to Mr. Rivera “for a little bit.” N.D. testified
that she played her flute for Mr. Rivera and that they watched a movie.
{¶9} N.D. testified that, in response to a sexual scene in the movie, Mr. Rivera “covered
my eyes playfully, like he didn’t want me to see, but then he started, like, rubbing - - rubbing my
- - rubbing my thighs.” According to N.D., Mr. Rivera “told me to go lock the door.” N.D. locked
the door even though she “was uncomfortable.”
{¶10} After locking the bedroom door, N.D. and Mr. Rivera “continued watching the
movie.” After watching the movie for a little bit, N.D. testified “that’s when he grabbed me and
pulled me on top of him and wrapped his arms around me to where I can’t really move and started
kissing me.” N.D. testified that Mr. Rivera laid her down, took off his pants, pulled down her
pants, and kissed her “on my neck, my breast, my lips.” N.D. testified that Mr. Rivera then “raped
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me. He slid his - - his penis into my - - my vagina.” Mr. Rivera ejaculated “on the bed” and on
N.D.’s “lower part.” N.D. was menstruating and wearing a pad at the time of the sexual assault.
{¶11} After gathering her things, N.D. went to her bedroom and called her aunt (“Aunt”).
N.D. told Aunt that she “just wanted to get out of the house. I didn’t want to stay in here no more.”
{¶12} When N.D. went downstairs, her grandmother (“Grandmother”) noticed that she
appeared “upset.” N.D. told Grandmother that Aunt was coming to pick her up.
{¶13} Aunt picked up N.D. and, during the car ride, N.D. disclosed the sexual assault to
Aunt. Aunt returned to Grandparents’ house and told other family members about N.D.’s
disclosure. The scene at the house became “chaotic” with family members confronting Mr. Rivera.
N.D. became distraught during the chaos and left the house with the intention of killing herself.
{¶14} Rather than harming herself, N.D. called 911 and reported the sexual assault. Police
responded to N.D.’s location and took her to the Nord Center where she underwent a sexual assault
kit examination. A sexual assault nurse examiner (“SANE”) took multiple swabs for potential
DNA evidence during the examination.
{¶15} Mr. Rivera returned to Philadelphia on the evening of the assault. After the sexual
assault kit examination, Grandmother retrieved the bedspread from the guestroom and noticed
“there was blood smeared on it and some other stuff.” The “other stuff” “looked like bodily
functions.”
{¶16} A forensic scientist testified regarding the submitted sexual assault kit from N.D.
The forensic scientist testified that N.D.’s underwear and pad tested positive for acid phosphatase,
which is found in semen, and that the mixture was “consistent with contributions from [N.D.] and
Edwin Rivera.” The DNA profile taken from N.D.’s right neck, where Mr. Rivera acknowledged
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kissing N.D., was “consistent with contributions from N.D. and Edwin Rivera.” N.D.’s vaginal
swab was negative for acid phosphatase.
{¶17} Mr. Rivera testified in his own defense. Mr. Rivera maintains that he went to sleep
in the guest bedroom on July 13, 2019, and that, while he was “dreaming,” N.D. came into the
room and initiated the sexual contact. According to Mr. Rivera, he woke-up to N.D. on top of
him, “grabbing” his “privates,” and he told N.D. to “stop.” Mr. Rivera testified that he “pushed”
N.D. away from him and that he “pre-ejaculate[d].” Although he was “shocked” from what had
just happened, Mr. Rivera “went back to bed” and “went to sleep.”
{¶18} Mr. Rivera went downstairs after his sister came into the bedroom and told him
about N.D.’s disclosure. Mr. Rivera did not initially tell family members his account of N.D.
initiating the sexual contact.
{¶19} The jury found Mr. Rivera guilty of rape and gross sexual imposition. Mr. Rivera
appeals this judgment of conviction raising six assignments of error.
I.
ASSIGNMENT OF ERROR NUMBER ONE
THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO
SUPPORT CRIMINAL CONVICTIONS OF APPELLANT, RESULTING IN
SUBSTANTIVE AND PROCEDURAL DUE PROCESS VIOLATIONS.
{¶20} Mr. Rivera argues in his first assignment of error that the State failed to present
sufficient evidence to support his convictions, resulting in substantive and due process violations.
We disagree.
{¶21} Whether a conviction is supported by sufficient evidence is a question of law, which
this Court reviews de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). “A challenge to
the sufficiency of the evidence concerns the State’s burden of production and is, in essence, a test
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of adequacy.” State v. Wilk, 9th Dist. Medina No. 22CA0008-M, 2023-Ohio-112, ¶ 9, citing In re
R.H., 9th Dist. Summit No. 28319, 2017-Ohio-7852, ¶ 25; Thompkins at 386. “The relevant
inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. This
Court does not, however, “resolve evidentiary conflicts or assess the credibility of witnesses,
because these functions belong to the trier of fact.” State v. Hall, 9th Dist. Summit No. 27827,
2017-Ohio-73, ¶ 10.
{¶22} In sex offense cases, this Court has held that “‘the testimony of the victim, if
believed, is sufficient to support a conviction, even without further corroboration. Thus, the
testimony of the victim may be enough, and does not need corroborating evidence.’” State v.
Melendez, 9th Dist. Lorain No. 08CA009477, 2009-Ohio-4425, ¶ 15, quoting State v. Willard, 9th
Dist. Medina No. 05CA0096-M, 2006-Ohio-5071, ¶ 11.
{¶23} Mr. Rivera was convicted of rape under R.C. 2907.02(A)(2), which states that “[n]o
person shall engage in sexual conduct with another when the offender purposely compels the other
person to submit by force or threat of force.” “Sexual conduct” means “vaginal intercourse
between a male and female; * * * and, without privilege to do so, the insertion, however slight, of
any part of the body or any instrument, apparatus, or other object into the vaginal or anal cavity of
another.” R.C. 2907.01(A).
{¶24} Mr. Rivera was also convicted of gross sexual imposition under R.C.
2907.05(A)(1), which states that:
(A) No person shall have sexual contact with another, not the spouse of the
offender; cause another, not the spouse of the offender, to have sexual contact
with the offender * * * when any of the following applies:
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(1) the offender purposely compels the other person, or one of the other
persons, to submit by force or threat of force.
“Sexual contact” means “any touching of an erogenous zone of another, including without
limitation, the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the
purpose of sexually arousing or gratifying either person.” R.C. 2907.01(B).
{¶25} Upon a thorough examination of the record, this Court concludes that there is
sufficient evidence upon which a jury could reasonably conclude that all the elements of rape and
gross sexual imposition were established beyond a reasonable doubt. N.D. testified that Mr. Rivera
started “rubbing” her “thighs”; that Mr. Rivera “grabbed” her; that Mr. Rivera “pulled” her “on
top of him”; and, that Mr. Rivera “wrapped his arms around” her to where she could not “really
move” and he “started kissing” her. N.D. testified that Mr. Rivera “kissed me on my neck, my
breast, my lips” and that he “raped” her, that “[h]e slid his - - his penis into my - - my vagina.”
{¶26} In considering the sufficiency of the evidence, this Court must view the evidence
in a light most favorable to the prosecution. Jenks at paragraph two of the syllabus. N.D.’s
testimony, if believed by the trier of fact, was sufficient to establish beyond a reasonable doubt
that Mr. Rivera committed the crimes of rape and gross sexual imposition. N.D.’s testimony
established that sexual conduct and sexual contact, as defined by R.C. 2907.01(A) and R.C.
2907.01(B) occurred; that Mr. Rivera compelled N.D. through force or threat of force to engage
in sexual conduct or sexual contact; and, that Mr. Rivera committed the offenses of rape and gross
sexual imposition.
{¶27} The evidence presented in the light most favorable to the State was sufficient to
sustain the convictions of rape and gross sexual imposition. Assignment of error number one is
overruled.
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ASSIGNMENT OF ERROR NUMBER TWO
THE CONVICTIONS OF APPELLANT ARE AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE PRESENTED, AND SAID CONVICTIONS
MUST BE VACATED.
{¶28} Mr. Rivera argues in his second assignment of error that the convictions are against
the manifest weight of the evidence. We disagree.
{¶29} When deciding whether a criminal conviction is against the manifest weight of the
evidence, this Court must consider the entire record and “weigh the evidence and all reasonable
inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in
the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice
that the conviction must be reversed and a new trial ordered.” State v. Otten, 33 Ohio App.3d 339,
340 (9th Dist.1986). A reversal on a manifest weight of the evidence challenge is reserved for
exceptional causes where the evidence weighs heavily against the conviction. Thompkins, 78 Ohio
St.3d at 387.
{¶30} Having reviewed the record, we cannot conclude that this is an exceptional case
where the evidence weighs heavily against Mr. Rivera’s conviction. See Otten at 340. N.D.
testified that, in July of 2019 when she was 14 years old, she was watching a movie with Mr.
Rivera when he “grabbed” her and “pulled” her on “top of him.” According to N.D., Mr. Rivera
“wrapped his arms around” her such that she could not “really move” and that he “started kissing”
her. N.D. testified that Mr. Rivera laid her down, took off his pants, pulled down her pants, and
kissed her “on my neck, my breast, my lips.” N.D. further testified that Mr. Rivera “raped me. He
slid his - - his penis into my - - my vagina.”
{¶31} The jury heard testimony from the SANE nurse, who testified as to the multiple
swabs for potential DNA evidence that she took during the sexual assault kit examination. A
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forensic scientist testified as to the results of the sexual assault kit, including the finding that N.D.’s
underwear and pad tested positive for acid phosphatase, which is found in semen, and that the
mixture was “consistent with contributions from [N.D.] and Edwin Rivera.” The DNA profile
taken from N.D.’s neck, where Mr. Rivera acknowledged kissing N.D., was also “consistent with
contributions from N.D. and Edwin Rivera.” Thus, the DNA evidence supports the jury’s findings
that sexual contact occurred.
{¶32} Mr. Rivera testified in his own defense and acknowledged that the sexual contact
occurred but that N.D. initiated the contact while he was sleeping. Mr. Rivera denied criminal
liability and testified that, when he woke up to N.D. on top of him, he “pushed” her away. Mr.
Rivera acknowledged that he “pre-ejaculate[d].”
{¶33} The jury was free to believe N.D.’s testimony. See State v. Clark, 9th Dist. Wayne
No. 14AP0002, 2015-Ohio-2978, ¶ 24. As the trier of fact, the jury was in the best position to
judge N.D.’s credibility, as well as the credibility of the other witnesses, and to evaluate their
testimony accordingly. See State v. Simmons, 9th Dist. Lorain No. 18CA011262, 2020-Ohio-614,
¶ 10. Mr. Rivera acknowledged that he pre-ejaculated, and the forensic scientist testified that the
acid phosphatase found on N.D.’s underwear and pad, which is found in semen, was “consistent
with contributions from [N.D.] and Edwin Rivera.” The fact that the acid phosphatase, which was
consistent with a contribution from Mr. Rivera, was found on N.D.’s underwear and pad could
have been taken by the jury as evidence of Mr. Rivera’s guilt.
{¶34} “‘A conviction is not against the manifest weight of the evidence merely because
there is conflicting evidence before the trier of fact.’” State v. Zaree, 9th Dist. Lorain No.
17CA011111, 2017-Ohio-9081, ¶ 5, quoting State v. Haydon, 9th Dist. Summit No. 19094, 1999
WL 1260298, *7 (Dec. 22, 1999). Likewise, “[a] verdict is not against the manifest weight of the
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evidence because the finder of fact [chose] to believe the State’s witnesses rather than the
defendant’s version of the events.” State v. Martinez, 9th Dist. Wayne No. 12CA0054, 2013-Ohio-
3189, ¶ 16.
{¶35} Upon review, Mr. Rivera has not shown that this is an exceptional case where the
jury lost its way by convicting him. See Otten, 33 Ohio App.3d at 340. Accordingly, his second
assignment of error is overruled.
ASSIGNMENT OF ERROR NUMBER THREE
THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S RULE
29 MOTION FOR JUDGEMENT [SIC] OF ACQUITTAL.
{¶36} Mr. Rivera argues in his third assignment of error that the trial court erred when it
denied his Crim.R. 29 motion on count one. We disagree.
{¶37} There is no difference between the standard of review for a challenge to the
sufficiency of the evidence and that for a motion for acquittal under Crim.R. 29. State v. Doss, 9th
Dist. Wayne No. 18AP0027, 2019-Ohio-426, ¶ 18. A sufficiency challenge questions whether the
State met its burden of production at trial. Wilk, 9th Dist. Medina No. 22CA0008-M, 2023-Ohio-
112 at ¶ 9. Sufficiency is “that legal standard which is applied to determine whether the case may
go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter
of law.” Thompkins, 78 Ohio St.3d at 386. Whether a conviction is supported by sufficient
evidence is a question of law, which is reviewed de novo. Id.; State v. Zappa, 9th Dist. Wayne
No. 20AP0025, 2022-Ohio-243, ¶ 7. “The relevant inquiry is whether, after viewing the evidence
in a light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt.” Jenks, 61 Ohio St.3d at paragraph two
of the syllabus.
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{¶38} Mr. Rivera was charged in count one with rape in violation of R.C. 2907.02(A)(2).
As previously set forth, R.C. 2907.02(A)(2) states that “[n]o person shall engage in sexual conduct
with another when the offender purposely compels the other person to submit by force or threat of
force.” “Sexual conduct” means “vaginal intercourse between a male and female; * * * and,
without privilege to do so, the insertion, however slight, of any part of the body or any instrument,
apparatus, or other object into the vaginal or anal cavity of another.” R.C. 2907.01(A). The statute
provides that “[p]enetration, however slight, is sufficient to complete vaginal or anal intercourse.”
Id.{¶39} Mr. Rivera argues that the trial court erred by denying his Crim.R. 29 motion based
on the State’s purported failure to present evidence that he vaginally penetrated N.D. N.D. directly
testified to vaginal penetration. N.D. testified that Mr. Rivera “slid his - - his penis into my - - my
vagina.” This testimony was sufficient to satisfy the statutory definition of sexual conduct. See
Melendez, 9th Dist. Lorain No. 08CA009477, 2009-Ohio-4425, at ¶ 15.
{¶40} Accordingly, we conclude that the trial court properly denied Mr. Rivera’s Crim.R.
29 motion. Mr. Rivera’s third assignment of error is overruled.
ASSIGNMENT OF ERROR NUMBER FOUR
THE TRIAL COURT ERRED IN REFUSING TO ALLOW CROSS
EXAMINATION OF THE ALLEGED VICTIM ON HER MENTAL
HEALTH ISSUES, NUMEROUS SUICIDE ATTEMPTS, AND A FALSE 911
CALL, THEREBY DENY[ING] APPELLANT THE RIGHT OF
CONFRONTATION AND TO PRESENT A COMPLETE DEFENSE, AND
SUBSTANTIVE AND PROCEDURAL DUE PROCESS.
{¶41} Mr. Rivera argues in his fourth assignment of error that the trial court erred when
it limited his cross-examination of N.D. by precluding him from asking questions regarding N.D.’s
mental health and an alleged 911 call in another matter. We disagree.
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{¶42} The admission or exclusion of relevant evidence rests within the sound discretion
of the trial court. State v. Sage, 31 Ohio St.3d 173, 180 (1987). Thus, an appellate court will not
reverse the trial court’s decision absent an abuse of discretion. State v. Myers, 97 Ohio St.3d 335,
2002-Ohio-6658, ¶ 75. “The term ‘abuse of discretion’ connotes more than an error of judgment;
it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying an abuse of discretion standard, a
reviewing court is precluded from substituting its judgment for that of the trial court. Pons v. Ohio
State Med. Bd., 66 Ohio St.3d 619, 621 (1993). Even if an appellant demonstrates that the trial
court’s ruling was an abuse of discretion, he does not establish reversible error unless he shows
that the error prejudiced his substantial rights. Beard v. Meridia Huron Hosp., 106 Ohio St.3d
237, 2005-Ohio-4787, ¶ 20.
{¶43} The State orally moved at trial for an order limiting defense counsel’s cross-
examination of N.D. The State moved for an order precluding defense counsel from questioning
N.D. about her “medical history and prior suicide attempts” and from referencing N.D.’s
“medication, [and] diagnosis of depression or anxiety.” The State argued that any such
information was not relevant to this case; that any such information was not “probative of the
victim’s character for truthfulness or her credibility;” and, that any such information should be
excluded as it was “inextricably related to her [N.D.’s] prior sexual abuse.”
{¶44} The referenced “prior sexual abuse case” involved another family member who
assaulted N.D. According to the State, that case “was prosecuted and actually pled guilty to.”
N.D. attempted suicide around the time of this prior sexual abuse case.
{¶45} The State argued to the trial court that if the inquiry into N.D.’s medical history and
prior suicide attempts continued, “it’s goading her [N.D.] into revealing to the jury why she tried
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to commit suicide, or why she has these conditions that she has, which I believe is impermissible
through the rape shield law.”
{¶46} In granting the State’s oral motion in limine, and finding that the rape shield law
applied, the trial court stated that “no one should be punished because of prior incidents involving
sex” and held that there would be no cross-examination as to the “victim’s prior suicide attempts
or mental health treatment.” The trial court further noted that, through Grandmother’s testimony,
the jury already heard testimony as to N.D.’s mental health problems. The trial court explained
that “the fact that she [N.D.] has had some – suffered from depression doesn’t go to her ability to
perceive experiences and describe them.”
{¶47} The trial court also cited State v. Lawhon, 5th Dist. Muskingum No. CT97-023,
1998 WL 346862 (June 10, 1998), which the State relied upon. Like N.D., the victim in Lawhon
had issues stemming from a previous rape. The Lawhon court found that the rape shield law was
applicable and that “the relevancy of the suicide attempt” was “suspect.” Lawhon at *2. Likewise,
the trial court here did not abuse its discretion in finding that questions about N.D’s mental health
issues would lead to exposure of her sexual assault that led to her mental health issues.
{¶48} The record establishes that the trial court did not abuse its discretion when it
excluded further cross-examination of N.D. about her mental health issues and prior suicide
attempts. R.C. 2907.02(D), as in effect in July of 2019, states that:
[e]vidence of specific instances of the victim’s sexual activity, opinion evidence of
the victim’s sexual activation, and reputation evidence of the victim’s sexual
activity shall not be admitted under this section unless it involves evidence of the
origin of semen, pregnancy, or disease, or the victim’s past sexual activity with the
offender, and only to the extent that the court finds that the evidence is material to
a fact at issue in the case and that its inflammatory or prejudicial nature does not
outweigh its probative value.
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{¶49} R.C. 2907.02(D) “essentially prohibits the introduction of any extrinsic evidence
pertaining to the victim’s sexual activity unless it involves evidence of the origin of semen,
pregnancy, or disease, or of the victim’s past sexual activity with the offender.” State v. Williams,
21 Ohio St.3d 33, 34 (1986). As this Court has recognized, even if the evidence pertains to “origin
of semen, pregnancy, or disease, or the victim’s past sexual activity with the offender, it is only
admissible if the court determines that it “is material to a fact at issue and that its probative value
is not outweighed by its prejudicial or inflammatory nature. ” State v. McGuire, 9th Dist. Nos.
16423, 16431, 1994 WL 700082, *7 (Dec. 14, 1994), citing R.C. 2907.02; In Re Michael, 119
Ohio App.3d 112, 118 (2d Dist.1997), citing R.C. 2907.02(D) (“even if one of the foregoing
exceptions applies, introduction of such evidence is permitted only if the court finds that the
evidence is material to a fact at issue and that its prejudicial nature does not outweigh its probative
value.”)
{¶50} The record establishes that N.D.’s mental health issues and prior suicide relate to a
prior sexual assault where she was the victim. This evidence was properly excluded as it does not
connote “evidence of the origin of semen, pregnancy, or disease, or the victim’s past sexual activity
with the offender.” See Lawhon at *2. Therefore, the trial court did not abuse its discretion by
preventing Mr. Rivera from cross-examining N.D. about her mental health history.
{¶51} Even if an appellant demonstrates that the trial court’s ruling was in error, he does
not establish reversible error unless he shows that the error prejudiced his substantial rights. Beard,
106 Ohio St.3d 237, 2005-Ohio-4787, at ¶ 20. Grandmother testified as to N.D.’s mental health,
including N.D.’s depression diagnosis, anti-depressant and anti-anxiety mediations, and prior
suicide attempts. From that testimony, the jury heard the same evidence that Mr. Rivera sought to
introduce and it was able to weigh that information when determining N.D.’s credibility. Mr.
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Rivera’s proposed cross-examination of N.D. would have been duplicative of Grandmother’s
testimony. Ohio “[c]ourts have not hesitated to find that error is harmless where the excluded
evidence is merely cumulative to other compelling evidence.” State v. West, 10th Dist. Franklin
No. 06AP-11, 2006-Ohio-6259, ¶ 9. See also State v. Bolling, 2d Dist. Montgomery No. 20225,
2005-Ohio-2509, ¶ 19 (“because the same evidence Defendant sought to introduce via lay opinion
testimony was admitted via other means, and permitted Defendant to ask the jury to draw the same
conclusions, the trial court’s error in excluding that lay opinion testimony was harmless error at
best.”).
{¶52} Mr. Rivera also argues in his fourth assignment of error that N.D. made a prior 911
call regarding another incident that was purportedly false and that the trial court erred by
precluding him from cross-examining N.D. about that call. We disagree.
{¶53} During Grandmother’s cross-examination, defense counsel asked her about a prior
911 call N.D. made wherein N.D. falsely claimed that someone had been shot. Grandmother
responded that she did not know what counsel was talking about. Defense counsel said, “You’re
not aware of that?” Grandmother responded “No.” Defense counsel did not revisit the purported
911 call, nor did he proffer its contents into the record. Defense counsel never questioned N.D.
about the purported call during her cross-examination and, as such, the trial court never prevented
further questioning about said call.
{¶54} The trial court did not issue an order precluding Mr. Rivera from cross-examining
N.D. about the alleged 911 call. Trial counsel never asked N.D. about the purported call; he only
questioned Grandmother about the call and she denied knowledge of it. There is no factual basis
in the record for Mr. Rivera’s assignment of error regarding the purported 911 call.
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{¶55} For the reasons set forth above, Mr. Rivera’s fourth assignment of error is
overruled.
ASSIGNMENT OF ERROR NUMBER FIVE
THE TRIAL COURT ERRED WHEN IT GAVE IMPROPER JURY
INSTRUCTIONS WHICH VIOLATED APPELLANT’S DUE PROCESS
RIGHT TO A FAIR TRIAL.
{¶56} Mr. Rivera argues in his fifth assignment of error that the trial court erred when it
gave the jury an instruction on force of a parent or other authoritative figure. We disagree.
{¶57} “[A] trial court must fully and completely give the jury all instructions which are
relevant and necessary for the jury to weigh the evidence and discharge its duty as a fact-finder.”
State v. Comen, 50 Ohio St.3d 206 (1990), paragraph two of the syllabus, citing Crim.R. 30(A).
A trial court should give a requested jury instruction if it is a correct statement of the law, is
applicable to the facts in the case, and “if reasonable minds might reach the conclusion sought by
the requested instruction.” State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, ¶ 240.
{¶58} “This Court reviews a trial court's decision to give or not give jury instructions for
an abuse of discretion under the particular facts and circumstances of the case.” State v. Calise,
9th Dist. Summit No. 26027, 2012-Ohio-4797, ¶ 68 citing State v. Sanders, 9th Dist. No. 24654,
2009–Ohio–5537, ¶ 45. An abuse of discretion implies the trial court's decision is unreasonable,
arbitrary, or unconscionable. Blakemore, 5 Ohio St.3d at 219.
{¶59} Mr. Rivera argued that the trial court erroneously gave the following instruction to
the jury:
When the relationship between the victim and the defendant is one of child and an
authority figure such as an elder family member, the element of force need not be
openly displayed or physically brutal. It may be subtle, slight or psychological.
Evidence of an express threat of harm or evidence of significant physical restraint
is not required.
16
This is the same instruction as contained in the Ohio Jury Instructions, CR Section 507.02(A)(12)
(Rev. Jan. 22, 2011).
{¶60} We conclude that the trial court did not abuse its discretion in giving this
instruction to the jury. The jury heard testimony that, at the time of the incident, Mr. Rivera was
52 years old while N.D. was 14 years old. There was testimony that Mr. Rivera and N.D.’s
grandfather were “very close” and “loved each other;” that Mr. Rivera was a trusted member of
the family; and, that N.D. called Mr. Rivera “tio” which means uncle in Spanish. Mr. Rivera
purchased a sweatshirt for N.D. and sat on a bench with N.D. during a community concert event
on the Friday evening before the assault. With respect to how she is to treat older family members,
like Mr. Rivera, N.D. testified:
Q: Were you taught anything about how kids are supposed to treat the adults
in your family?
A: We grew up to respect our elders.
Q: Okay. And what does that mean by respecting your elders?
A: Respecting, like our aunts and uncles and giving – I don’t know.
Q: Doing what they say?
A: Yes.
{¶61} Ohio courts have recognized the relevance of a force of an authority figure jury
instruction where an older relative or family friend sexually assaults or rapes a younger family
member. See State v. Frazier, 8th Dist. Cuyahoga No. 107680, 2019-Ohio-2739, ¶ 44-45 (the trial
court’s force of authority figure jury instruction was affirmed on appeal where victim’s uncle, the
defendant, was 36 years old and the victim was 13 years old at the time of the assault); State v.
Haschenburger, 7th Dist. Mahoning No. 05 MA 192, 2007-Ohio-1562, ¶ 50 (trial court’s force of
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authority figure jury instruction affirmed on appeal where the defendant was the older friend of
the victim’s father.)
{¶62} Based on the evidence in the record, we conclude the trial court did not abuse its
discretion in giving the jury the force of an authority figure jury instruction. Mr. Rivera’s fifth
assignment of error is overruled.
ASSIGNMENT OF ERROR NUMBER SIX
THE TRIAL COURT ERRED WHEN IT IMPOSED AN INDEFINITE
PRISON TERM.
{¶63} Mr. Rivera argues in his sixth assignment of error that the Reagan Tokes Law
(“Reagan Tokes”), under which he was sentenced, is unconstitutional as it violates the doctrine of
separation of powers and is void for vagueness. This Court rejects these arguments.
{¶64} Based on the nature of Mr. Rivera’s objection in the trial court, different standards
of review apply on appeal. This Court’s review of Mr. Rivera’s separation of powers argument,
which was presented in the trial court, is de novo. State v. Franks, 9th Dist. Summit No. 28533,
2017-Ohio-7045, ¶ 21, citing State v. Honey, 9th Dist. Medina No. 08CA0018-M, 2008-Ohio-
4943,¶ 4. When applying a de novo review on constitutional matters, this Court notes that statutes
are entitled to a “strong presumption of constitutionality.” State v. Romage, 138 Ohio St.3d 390,
2014-Ohio-783, ¶ 7. The burden is on the party challenging the validity of the statute to establish
“beyond a reasonable doubt that the statute is unconstitutional.” Wilson v. Kasich, 134 Ohio St.3d
221, 2012-Ohio-5367, ¶ 18; State v. Smith, 9th Dist. Wayne No. 15AP0001, 2017-Ohio-359, ¶ 28.
{¶65} Mr. Rivera did not raise a void for vagueness argument to the trial court. “The
failure to challenge the constitutionality of a statute in the trial court forfeits all but plain error on
appeal, and the burden of demonstrating plain error is on the party asserting it.” State v.
Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, ¶ 2. Plain error occurs if there has been an
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error, meaning a deviation from the legal rule; the error was an obvious defect; and the error
affected a substantial right. State v. Barnes, 94 Ohio St.3d 21, 27 (2002). This Court should take
notice of plain error “with the utmost caution, under exceptional circumstances and only to prevent
a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the
syllabus.
{¶66} Mr. Rivera first asserts in his brief that Reagan Tokes “violates the separation of
powers doctrine, as it allows the Ohio Department of Rehabilitation and Corrections, to extend an
inmate’s release date based upon conduct in prison.” Mr. Rivera maintains, without further
explanation or argument, that this “usurps the power rightfully delegated to the judiciary and
violates separation of powers.”
{¶67} Mr. Rivera has not properly developed an argument in his merit brief as to the
constitutionality of Reagan Tokes, specifically as to his violation of the separation of powers
argument. As stated above, a party challenging a statute’s constitutionality bears the burden of
proving that it is unconstitutional beyond a reasonable doubt. Wilson, 134 Ohio St. 3d 221, 2012-
Ohio-5367, at ¶ 18; Smith, 9th Dist. Wayne No. 15AP0001, 2017-Ohio-359, at ¶ 28. Mr. Rivera
failed to set forth any argument to support his position that the indefinite sentencing scheme under
Reagan Tokes is unconstitutional as it violates the separate of powers. We decline to address the
merits of this undeveloped argument.
{¶68} This Court has rejected Reagan Tokes challenges when, as in this case, the
appellant failed to properly develop his or her arguments and thus failed to establish, by a
reasonable doubt, that the statute is unconstitutional. See State v. Arthur, 9th Dist. Medina No.
21CA0075-M, 2022-Ohio-1980; State v. Bennett, 9th Dist. Medina No. 21CA0055-M, 2022-
Ohio-4796.
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{¶69} With respect to his void for vagueness argument, Mr. Rivera maintains without
further explanation or analysis, that Regan Tokes “fails to give the inmate proper notice of the
conduct which could extend the presumed release date, thereby making the statute void for
vagueness.” Mr. Rivera has presented this Court with a very limited plain error argument. Apart
from a conclusory statement, Mr. Rivera has not explained why this is an exceptional case where
plain error must be found “to prevent a manifest miscarriage of justice.” Long, 53 Ohio St.2d 91at paragraph three of the syllabus. As this Court concluded in State v. Coleman, 9th Dist. Summit
No. 30133, 2022-Ohio-3808, ¶ 60, it is loath to address the constitutionality of Reagan Tokes
“based on the limited argument presented herein.”
{¶70} Mr. Rivera has not properly developed his arguments as to the constitutionality of
Reagan Tokes. Assignment of error number six is therefore overruled.
III.
{¶71} For the reasons stated above, Mr. Rivera’s first, second, third, fourth, fifth, and sixth
assignments of error are overruled. The judgment of the Lorain County Court of Common Pleas
is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
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Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
SCOT STEVENSON
FOR THE COURT
SUTTON, P. J.
HENSAL, J.
CONCUR.
APPEARANCES:
GREGORY S. ROBEY, Attorney at Law, for Appellant.
J.D. TOMLINSON, Prosecuting Attorney, and C. RICHLEY RALEY, JR., Assistant Prosecuting
Attorney, for Appellee.