State v. Munoz , 2023 Ohio 1895 ( 2023 )

[Cite as State v. Munoz, 2023-Ohio-1895.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 112006
v. :
ERIC MUNOZ, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 8, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-20-648577-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Kerry A. Sowul and Debora Brewer,
Assistant Prosecuting Attorneys, for appellee.
Patituce & Associates, LLC, Joseph C. Patituce, Megan M.
Patituce, and Erin M. Branham, for appellant.
SEAN C. GALLAGHER, J.:
Eric Munoz appeals his convictions for gross sexual imposition in
violation of R.C. 2907.05(A)(4) (sexual contact with a victim under the age of 13), a
felony of the third degree, and endangering children in violation of R.C.
2919.22(B)(1) (child abuse), a misdemeanor of the first degree. He also challenges
the resulting three-year, concurrent term of imprisonment. For the following
reasons, the convictions are affirmed.
The victim, then approximately 11 years old, is related to Munoz and
lived with him at the time. In the summer of 2019, Munoz confronted the victim
about pornography he claimed to have found on her phone. Munoz had been
drinking that day and waited until his girlfriend left the home before confronting the
victim. Munoz told the victim he wanted to show her what the pornography was and
told her to remove her pants. Munoz pulled the victim toward him, telling her to
touch his “private area.” The victim complied with the demand. The victim pulled
her hand away, and Munoz got on the bed between her legs. Munoz’s penis was
exposed as he was between her legs, touching her inner thigh. The victim told him
to stop, and he did.
The victim told her friend about what occurred through a text
message, admittedly embellishing her recounting of the events to include other
forms of sexual assault. The friend showed that message to their school’s principal,
who reported the conduct to law enforcement officers. After the incident, the victim
left Munoz’s care and now lives with another family member.
Munoz’s primary defense relied on impeaching the victim as being
untruthful because she wanted to live with another relative, one who according to
Munoz, would let the victim get away with more conduct than Munoz permitted.
The jury heard from the victim’s other relatives who believed the victim regularly
lied, but the jury nonetheless deemed the victim credible as it related to the
allegations and found Munoz guilty of the gross sexual imposition and child
endangering charges.1 Munoz timely appealed his convictions, advancing several
assignments of error, which will be addressed in turn and as presented.
In the first assignment of error, Munoz claims his “conviction” is
against the weight of the evidence. Munoz has not identified which of the two
convictions he is challenging on this point. Instead, Munoz’s entire argument is that
the victim lacks credibility based on her alleged penchant for lying, her inconsistency
in recounting the sexual assault by embellishing in the text message to her friend,
and her desire to live with her mother at the time she disclosed the assault. Thus,
his sole argument pertains to the victim’s credibility without regard to the individual
elements of each offense.
In evaluating a claim that the verdict is against the weight of the
evidence, appellate courts must “review the entire record, 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” so that the convictions must be
reversed and a new trial ordered. State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-
1 During the time he committed the sexual assault against the victim in the
underlying action, Munoz was serving a term of community-control sanctions based on a
guilty plea to one count of improperly handling firearms in a motor vehicle in violation of
R.C. 2923.16(B), a felony of the fourth degree. The violation of the terms of his
community-control sanctions, based on the underlying conduct in this case, is the subject
of a second appeal in 8th Dist. Cuyahoga No. 112007 and will not be otherwise addressed
in this opinion.
1562, 114 N.E.3d 1092, ¶ 168, citing State v. Thompkins, 78 Ohio St.3d 380, 387,
678 N.E.2d 541 (1997). Reversing a conviction based upon the weight of the
evidence should occur “‘only in the exceptional case in which the evidence weighs
heavily against the conviction.’” Thompkins at 387, quoting State v. Martin, 20
Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
Munoz was convicted of gross sexual imposition for having sexual
contact with the victim under the age of 13 and for child endangering for abusing the
victim. The jury considered the victim’s testimony and the defendant’s arguments
as to credibility at great length, the same arguments presented in this appeal. After
consideration of Munoz’s arguments pertaining to the victim’s credibility, it cannot
be determined that the trier of fact lost its way.
Munoz’s primary argument is that the victim had a motive to lie, was
generally untruthful according to her aunt and grandmother, and embellished her
retelling of the sexual assault to her friend, which contradicted her trial testimony.
When confronted with the inconsistencies between those statements, the victim
explained them, claiming her version of the events, which was less severe than the
conflicting story initially revealed to her friend, was accurate. Although the victim
may have had a motive to fabricate the allegations, Munoz has not demonstrated
that her version of the sexual assault as retold at trial was inherently incredible or
was contradicted by extrinsic evidence with the contradiction left unexplained. At
the least, Munoz has not demonstrated that this is the exceptional case warranting
appellate intervention. The first assignment of error is overruled.
In the second assignment of error, Munoz claims his conviction is not
based on sufficient evidence because the state failed to produce evidence beyond the
testimony of the victim herself, which according to Munoz was suspect given her
credibility issues. The state, however, is not required to present physical evidence
of a sexual assault having occurred in order to sustain a conviction. State v. Scott,
8th Dist. Cuyahoga No. 110744, 2022-Ohio-2768, ¶ 39, citing State v. Thomas, 2d
Dist. Montgomery No. 27362, 2018-Ohio-4345, ¶ 25, State v. West, 10th Dist.
Franklin No. 06AP-11, 2006-Ohio-6259, ¶ 18, State v. Thomas, 2015-Ohio-5247, 54
N.E.3d 732, ¶ 31 (9th Dist.), State v. White, 3d Dist. Seneca No. 13-16-21, 2017-Ohio-
1488, ¶ 54, and State v. Williams, 2017-Ohio-8898, 101 N.E.3d 547, ¶ 19 (1st Dist.).
Further, sufficiency of the evidence presumes the credibility of the witness’s
testimony, such that the victim’s credibility does not impact the sufficiency of the
state’s case. See State v. Hundley, 162 Ohio St.3d 509, 2020-Ohio-3775, 166 N.E.3d
1066, ¶ 59. The second assignment of error is overruled.
In the third assignment of error, Munoz argues that “the trial court
deprived appellant of his right to present a defense when it prevented him from
cross-examining a defense witness in the presence of the jury.” Munoz sought to
elicit the victim’s alleged inconsistent, out-of-court statements made during a
conversation that took place among the grandmother, the aunt, the victim, and
Munoz’s trial counsel. According to Munoz, based on a voir dire of the grandmother
outside of the jury’s presence, the victim allegedly admitted to certain
“misrepresentations” she made about the events underlying the indictment. The
victim’s alleged statements were not proffered during the voir dire, and according to
the parties, are not otherwise part of the appellate record. See App.R. 16(A)(6). The
trial court precluded Munoz from introducing the hearsay through the
grandmother’s testimony in an attempt to impeach the victim.
The trial court relied on Evid.R. 613, which provides in pertinent part
as follows: “[E]xtrinsic evidence of a prior inconsistent statement by a witness is
admissible if * * * the statement is offered solely for the purpose of impeaching the
witness, [and] the witness is afforded a prior opportunity to explain or deny the
statement.” Munoz had not asked the victim about her alleged statements made
during that meeting when the victim was on the stand.
In this appeal, and as solely relied on during trial, Munoz claims that
he should have been permitted to impeach the victim through another witness’s
testimony and without giving the victim the opportunity to explain the inconsistent
statement. According to Munoz, the victim’s out-of-court statement is not hearsay
if it is offered for the purposes of impeaching any witness once that witness testifies
because a “party may attack the credibility of a witness by means of a prior
inconsistent statement pursuant to Evid.R.607[,]” citing Cleveland v. Greear, 8th
Dist. Cuyahoga No. 108190, 2020-Ohio-29. Munoz’s argument is misplaced.
Munoz has not addressed, discussed, or presented any authority
demonstrating that the trial court erred in applying the language of Evid.R. 613,
which as a threshold matter, precludes Munoz from impeaching a witness with a
prior inconsistent statement without giving her the opportunity to explain any
purported inconsistency. The question is not whether the statement is hearsay or
impeachment, but whether the trial court erred in applying the unambiguous
restrictions on impeaching with prior inconsistent statements under Evid.R. 613. In
this regard, Munoz has not addressed the foundation of the trial court’s evidentiary
decision as it was entered on the record. See App.R. 16(A)(7); 12(A)(2). Further, the
transcript reflects that the inconsistencies in the victim’s testimony were generally
explored. The jury was aware that the victim had been inconsistent; and while her
purported statements in front of her grandmother were not admitted, the jury was
able to assess the victim’s credibility with an appreciation of her inconsistent
statements. The third assignment of error is overruled.
In the fourth assignment of error, Munoz claims that his trial
counsel’s failure to properly impeach the victim amounts to ineffective assistance of
counsel, relying on the purported inconsistent statement uttered to her
grandmother excluded under Evid.R. 613.
“[A]ppellate courts generally review ineffective assistance of counsel
claims on a de novo basis * * *.” State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-
6679, 860 N.E.2d 77, ¶ 53. In order to prevail on an ineffective assistance of counsel
claim, the defendant must show that his trial counsel’s performance was deficient
and that the deficient performance prejudiced the defense. Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.
Grate, 164 Ohio St.3d 9, 2020-Ohio-5584, 172 N.E.3d 8, ¶ 49. “[A] court must
indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance * * *.” Strickland at 689. To establish prejudice,
the defendant must demonstrate there is a “reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694.
A claim of ineffective assistance requires the defendant to not only
prove a deficient performance, but that the outcome of the proceeding would have
been different. An offender’s “failure to prove either prong of the Strickland two-
part test makes it unnecessary for a court to consider the other prong.” State v.
Eaton, 8th Dist. Cuyahoga Nos. 105926 and 105927, 2018-Ohio-1968, ¶ 21, citing
State v. Madrigal, 87 Ohio St.3d 378, 388-389, 721 N.E.2d 52 (2000), and
Strickland at 697.
Munoz focuses on the purported deficiency, claiming that trial
counsel’s “choice not to call [the victim] back to the stand to remedy” the inability to
introduce the victim’s out-of-court statements through the grandmother prejudiced
Munoz at trial. The victim’s statements are not part of the appellate record, and as
a result, any impact those statements would have had at trial is a matter of
speculation. This issue cannot be resolved in this appeal. State v. Bunch, Slip
Opinion No. 2022-Ohio-4723, ¶ 35 (string citing cases holding that “direct appeals
are not the appropriate place to consider allegations of ineffective assistance of trial
counsel that turn on information that is outside the record”); State v. Blanton, Slip
Opinion No. 2022-Ohio-3985, ¶ 38. The fourth assignment of error, is accordingly,
overruled.
In the fifth assignment of error, Munoz claims the trial court erred by
imposing the maximum prison term, a three-year term of imprisonment on the
third-degree gross sexual imposition offense.
A defendant’s right to appeal a sentence is generally derived from R.C.
2953.08. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923,
¶ 10. An appellate court may not review whether the record clearly and convincingly
supports the sentencing factors and considerations under R.C. 2929.11 and 2929.12.
State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 27. “R.C.
2929.11 and 2929.12 are not among the statutory provisions listed in R.C.
2953.08(G)(2)(a) [and] [o]nly R.C. 2929.13(B) and (D), 2929.14(B)(2)(e) and
(C)(4), and 2929.20(I) are specified.” Id. at ¶ 28. Despite this limitation, it is
reversible error to impose a sentence if the trial court considers evidence outside of
enumerated factors or considerations of R.C. 2929.11 or 2929.12. State v. Bryant,
168 Ohio St.3d 250, 2022-Ohio-1878, 198 N.E.3d 68, ¶ 31. Although appellate
courts are precluded from reviewing whether the record supports the sentencing
factors and considerations, the courts may review the sentencing factors and
considerations to determine whether the trial court erroneously considered
evidence not contemplated under R.C. 2929.11 or 2929.12.
At the sentencing hearing, according to Munoz, the trial court made
questionable statements regarding Munoz’s decision to have another child for whom
he would have trouble providing financial assistance, citing his criminal history and
substance-abuse issues. The trial court then commented on Munoz’s decision to
bring his 12-year-old son to court for the sentencing hearing in an apparent attempt
to chastise Munoz’s parenting decision-making skills in general and also questioned
Munoz’s decision to paint the victim, a child under his care at the time of the sexual
assault, as a liar throughout trial, using her close relatives to attack the victim’s
propensity for truthfulness. Munoz claims that those considerations do not fall
within the ambit of the sentencing factors enumerated within R.C. 2929.12, in
violation of Bryant.
R.C. 2929.12, however, is broad and contains a catchall provision that
the sentencing court shall consider “any other relevant factors as indicating that the
offender’s conduct is more serious than conduct normally constituting the offense.”
(Emphasis added.) R.C. 2929.12(B). Thus, simply claiming that a trial court’s stated
rationale is not expressly provided for under R.C. 2929.12 in general is not sufficient
to sustain an appellate argument even under the standard created by Byrant. In
order to sustain Munoz’s argument, this panel would be required to discuss each
factor under R.C. 2929.12, search for case authority favoring Munoz’s position, and
then develop an argument as to each factor’s inapplicability to the trial court’s
statements with regard to Munoz’s particular situation; especially as it pertains to
the catchall provision under R.C. 2929.12(B) that a court may consider “any other
relevant factors.” Appellate courts are not obligated to create, nor should they sua
sponte provide, arguments on behalf of parties. See Quarterman, 140 Ohio St.3d
464, 2014-Ohio-4034, 19 N.E.3d 900, at ¶ 19. The conclusory argument presented
by Munoz is without merit, and the fifth assignment of error is overruled.
In the sixth assignment of error, Munoz claims “the trial court’s
conduct deprived appellant of his right to a fair trial, right to effective assistance of
counsel, and his right to present a defense” because the trial court was biased against
him throughout the entirety of the case. Munoz cites comments made by the trial
court during a bond hearing and again at the sentencing hearing (as denoted above),
as evidence of the bias. However, he has not identified any due process violations
that are entwined with those statements.
With respect to reviewing a judge’s potential bias, the Ohio Supreme
Court has created two standards.
The first one, under State v. Dean, 127 Ohio St.3d 140, 2010-Ohio-
5070, 937 N.E.2d 97, provides that appellate courts can review claims of judicial
bias. “‘[A] criminal trial before a biased judge is fundamentally unfair and denies a
defendant due process of law.’” Id. at ¶ 48, quoting State v. LaMar, 95 Ohio St.3d
181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 34, and Rose v. Clark, 478 U.S. 570, 577,
106 S.Ct. 3101, 92 L.Ed.2d 460 (1986). “‘[O]pinions formed by the judge on the basis
of facts introduced or events occurring in the course of the current proceedings, or
of prior proceedings, do not constitute a basis for a bias or partiality motion unless
they display a deep-seated favoritism or antagonism that would make fair judgment
impossible.’” Id. at ¶ 49, quoting Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct.
1147, 127 L.Ed.2d 474 (1994). Importantly, “‘judicial remarks during the course of
a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or
their cases, ordinarily do not support a bias or partiality challenge.’” Id., quoting
Liteky. Typically, an offender must demonstrate the bias through linking the
impermissible commentary to the decisions at trial. Id. at ¶ 52. If the offender
demonstrates that “the trial was infected with judicial bias, the remedy is a new
trial.” State v. Hough, 2013-Ohio-1543, 990 N.E.2d 653, ¶ 10 (8th Dist.), citing
Dean; but see Fisher v. Fisher, 8th Dist. Cuyahoga No. 95821, 2011-Ohio-5251, ¶ 43,
citing Baker v. Ohio Dept. of Rehab. & Corr., 144 Ohio App.3d 740, 754, 761 N.E.2d
667 (4th Dist.2001), and Beer v. Griffith, 54 Ohio St.2d 440, 441-442, 377 N.E.2d
775 (1978) (“[S]ince only the Chief Justice or [their] designee may hear
disqualification matters, [courts of appeals are] without authority to pass upon
disqualification or to void the judgment of the trial court upon that basis.”
(Emphasis added.)).
Despite permitting appellate review of a claim for potential bias
within trial proceedings, the Ohio Supreme Court has also concluded in the second
line of authority that an offender must first avail himself of the statutory process set
forth under R.C. 2701.03 to challenge the alleged bias in order to preserve the claim
for review. State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 223
(not to be confused with the 2010 Dean decision just discussed). In the more recent
Dean, the defendant appealed his sentence claiming the trial judge impermissibly
predetermined that the sentence of death would be imposed, and that bias required
a new sentencing hearing. Id. at ¶ 222. According to the Ohio Supreme Court,
however, the failure to timely and properly raise allegations of bias within the R.C.
2701.03 framework precludes a defendant from bringing the complaints of bias in a
direct appeal. Id., citing State v. Osie, 140 Ohio St.3d 131, 2014-Ohio-2966, 16
N.E.3d 588, ¶ 65, and State v. Moore, 93 Ohio St.3d 649, 650, 758 N.E.2d 1130(2001). Accordingly, “an appellant who had failed to file an affidavit of
disqualification could not complain on appeal that the judges on the court below
were biased.” Osie at ¶ 64; but see State v. Hunt (In re Thomakos), 162 Ohio St.3d
1203, 2020-Ohio-6874, 166 N.E.3d 34, ¶ 4 (“[a]lleged due-process violations,
however, may be addressed on appeal” when the due process claims arise from the
allegations of judicial bias), citing State v. Jackson, 149 Ohio St.3d 55, 2016-Ohio-
5488, 73 N.E.3d 414, ¶ 43, and Dean, 127 Ohio St.3d 140, 2010-Ohio-5070, 937
N.E.2d 97, at ¶ 2.
The seeming conflict between the two lines of authority is not one in
need of resolution with respect to Munoz’s argument. Munoz’s entire argument is
focused on establishing the alleged bias manifested through the trial court’s
statements to him at the bond hearing and again during the sentencing hearing.
Although we appreciate the varying interpretations of the judicial
commentary that could impact the perception of propriety, Munoz has not
presented any arguments relating to any due process violations arising from the
allegations of bias for the purposes of presenting a claim under LaMar and the 2010
Dean decision, thus failing to demonstrate that those due process implications
would have occurred at and impacted the trial. It cannot be concluded that the
alleged claims of bias raised in this case deal with matters that are inextricably
entwined with any due process concerns impacting the trial itself, leaving us with no
authority to review the claims of judicial bias. See Osie at ¶ 65, fn. 5 (in Dean, the
claim of bias was “inextricably entwined” with the improper denial of a request for
self-representation, and absent that, Dean is inapplicable). It is not enough to
identify statements demonstrating a potential bias. The offender must demonstrate
that the bias is inextricably entwined with a due process violation before appellate
review is permissible. Osie at ¶ 65, fn. 5. The sixth assignment of error is overruled.
In the seventh, and final, assignment of error, Munoz claims that
cumulative errors that were individually deemed harmless combined to create
prejudice. Under the cumulative-error doctrine, a conviction may be reversed when
the cumulative effect of nonprejudicial errors “deprives a defendant of a fair trial
even though each of the instances of trial-court error does not individually constitute
cause for reversal.” Garrett, 2022-Ohio-4218, at ¶ 270, citing State v. Powell, 132
Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, at ¶ 223, and State v. DeMarco,
31 Ohio St.3d 191, 509 N.E.2d 1256 (1987), paragraph two of the syllabus. Having
found no error deemed to be harmless, the final assignment of error is overruled.
The convictions are 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 appeal 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.
______________________
SEAN C. GALLAGHER, JUDGE
EILEEN T. GALLAGHER, J., CONCURS;
KATHLEEN ANN KEOUGH, P.J., CONCURS IN JUDGMENT ONLY