[Cite as State v. Hunter, 2020-Ohio-2718.]

                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                     :

                 Plaintiff-Appellee,               :
                                                            No. 108684
                 v.                                :

ERIC HUNTER,                                       :

                 Defendant-Appellant.              :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: April 30, 2020


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-18-627084-A


                                             Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Chadwick P. Cleveland, Assistant
                 Prosecuting Attorney, for appellee.

                 Mark A. Stanton, Cuyahoga County Public Defender,
                 and Francis Cavallo, Assistant Public Defender, for
                 appellant.
SEAN C. GALLAGHER, J.:

               Eric Hunter appeals his conviction for rape in violation of R.C.

2907.02(A)(1)(c), a felony of the first degree, following a jury trial that resulted in a

six-year term of imprisonment.1 We affirm.

               Hunter and his wife temporarily lived with Hunter’s in-law, who

owned the two-story, three-bedroom home where the events occurred.                  The

Hunters were staying with Hunter’s in-law for a couple of weeks until they “passed

on to where they were going.” There was only one bedroom in the second story

that was occupied by the victim, who had known the family since she was five years

old and who had also been staying in the home for an extended period of time. The

victim was 22 years old at the time. Hunter and his wife shared a room on the first

floor. On the evening of the rape, the occupants of the home were sitting in the

garage or outside the back of the garage listening to music.

               Hunter, his wife, and the victim stayed awake the longest, and the

Hunters were having drinks as the night continued. The victim drank a single

beer. Eventually, Hunter’s wife went into her bedroom. After she departed,

Hunter started telling the victim about “something sexual that he did with


      1  Although the jury found Hunter guilty of rape in violation of R.C. 2907.02(A)(2)
(forcible rape), the trial court merged that finding of guilt into the substantial
impairment rape under R.C. 2941.25 before imposing the sentence. Because Hunter
was not convicted of forcible rape (in other words there is no sentence imposed on that
count as required for a conviction to be final under State v. Whitfield, 124 Ohio St.3d
319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 12) and because we affirm the resulting conviction
for the substantial impairment rape, we need not consider the merged offense in this
appeal. State v. Ramos, 8th Dist. Cuyahoga No. 103596, 2016-Ohio-7685, ¶ 16; State v.
Young, 10th Dist. Franklin Nos. 18AP-630 and 18AP-631, 2020-Ohio-462, ¶ 86.
someone else.” Hunter went so far as to stand and mimic the sexual movement.

The victim felt uncomfortable with the turn in the conversation and excused

herself.   Hunter claims that the victim’s retelling of the events introduced

competing excuses that the victim offered when leaving. The victim claims to have

said she was going inside to check on her infant son, while Hunter claims that the

victim also said that she was going inside to text or talk to her boyfriend.

               Regardless, the victim left Hunter alone and went to her bedroom to

fall asleep. The next thing the victim remembers is waking up while lying on her

back, feeling pressure inside her vagina, and seeing Hunter’s face between her legs

with his mouth on her vagina. On this point, Hunter claims that the victim

provided a different account to the investigating police officer. In the police report,

the victim was recorded as stating that she awoke with Hunter on her back while

he had his head between her legs. The jury was presented both versions.

               As soon as the victim awoke, Hunter ran toward the steps and yelled

an expletive. Although the victim gave differing accounts of what expletive was

used in her trial testimony, as compared to the statements provided the

investigating police officer, the general theme was the same — Hunter immediately

fled the room and shouted an expletive upon the victim’s waking up. The victim

was still wearing underwear and a menstrual pad, which had been displaced by

Hunter’s conduct.

               The victim immediately disclosed the events to Hunter’s in-law, who

called the police and described the victim as being hysterical.         Hunter’s wife
apparently left the house with Hunter at that time — neither was present when

police officers responded. The victim was taken to the hospital for evaluation and

preservation of evidence. DNA implicating Hunter was discovered on the victim’s

menstrual pad, a portion of which was preserved by the healthcare professional.

Upon this evidence, the jury found Hunter guilty of forcible and substantial

impairment rape, although only the substantial impairment conviction survived

merger.

              In the first two assignments of error, Hunter claims that his

conviction is against the weight of the evidence or is based on insufficient evidence.

Neither claim has merit.

              R.C. 2907.02(A)(1)(c) provides that “no person shall engage in

sexual conduct with another who is not the spouse of the offender or who is the

spouse of the offender but is living separate and apart from the offender,” if “the

other person’s ability to resist or consent is substantially impaired because of a

mental or physical condition” and the offender is aware of the impairment. Rape

under R.C. 2907.02 can occur through the act of penetration or cunnilingus.

Penetration is not required to demonstrate cunnilingus. State v. Lynch, 98 Ohio

St.3d 514, 2003-Ohio-2284, 787 N.E.2d 1185, ¶ 86. “[T]he act of cunnilingus is

completed by the placing of one’s mouth on the female’s genitals.” Id., citing State

v. Ramirez, 98 Ohio App.3d 388, 393, 648 N.E.2d 845 (3d Dist.1994), and State v.

Bailey, 78 Ohio App.3d 394, 395, 604 N.E.2d 1366 (1st Dist.1992). In this case,
however, the indictment included the element of vaginal penetration as it relates to

proving sexual conduct.

               “Sexual conduct” under R.C. 2907.02 is an element of rape. R.C.

2907.01(A) provides that “sexual conduct” is defined such that vaginal intercourse

includes “‘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. Penetration,

however slight, is sufficient to complete vaginal or anal intercourse.’” State v.

Lynch, 98 Ohio St.3d 514, 2003-Ohio-2284, 787 N.E.2d 1185, ¶ 84, quoting R.C.

2907.01(B).

               In this case, Hunter’s argument relies on the victim’s arguably

inconsistent trial testimony. Because the victim’s credibility is the primary issue,

we need not consider Hunter’s sufficiency argument.             A claim of insufficient

evidence raises the question whether the evidence is legally sufficient to support

the verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-

Ohio-52, 678 N.E.2d 541. In reviewing a sufficiency challenge, “[t]he 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,

574 N.E.2d 492 (1991), paragraph two of the syllabus.             Because the victim’s

credibility is primarily an issue for the trier of fact with respect to the sufficiency of

the evidence, the victim’s testimony that she awoke feeling pressure inside her

vagina as Hunter’s head and mouth were on it is sufficient evidence of penetration.
               The sole issue is whether the victim’s ambiguous testimony

regarding penetration and the slight inconsistencies in her retelling of the events

demonstrate that Hunter committed the substantial impairment rape beyond a

reasonable doubt — a matter that must be solely addressed under the weight-of-

the-evidence standard of review.

               When reviewing a claim challenging the manifest weight of the

evidence, the court, reviewing the entire record, must weigh the evidence and all

reasonable inferences, consider the credibility of the 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. Thompkins at 387. In undergoing this review,

appellate courts must “ask whose evidence is more persuasive — the state’s or the

defendant’s?” Id. This means that

      The [reviewing] court * * * weighs the evidence and all reasonable
      inferences, considers the credibility of witnesses and determines
      whether in resolving conflicts in the evidence, the [finder of fact]
      clearly lost its way and created such a manifest miscarriage of justice
      that the [judgment] must be reversed and a new trial ordered.

Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 20,

quoting Tewarson v. Simon, 141 Ohio App.3d 103, 115, 750 N.E.2d 176 (9th Dist.

2001). “The discretionary power to grant a new trial should be exercised only in

the exceptional case in which the evidence weighs heavily against the conviction.”

State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
               In this case, the victim’s testimony was largely consistent with the

version of events she provided the healthcare professional and the investigating

police officer. The minor discrepancies in the expletive she remembers Hunter

yelling is of little consequence. Further, the difference between the reports of the

victim being awoken with the defendant on her back, but with his head between

the victim’s legs, as opposed to the victim’s trial testimony stating that she awoke

on her back to find Hunter’s head between her legs was considered and resolved by

the trier of fact. On the basic events, the victim’s retelling of the story was largely

consistent and there was evidence of Hunter’s DNA on the menstrual pad within

the victim’s undergarment, in part corroborating the victim’s testimony. And

finally, although the victim could not specifically testify to the penetration because

she was asleep when the rape was committed, she unambiguously testified to

feeling pressure inside her vagina and seeing Hunter’s face between her legs

immediately upon waking up.

               The jury considered and resolved the conflicts in the testimony and

record, and Hunter has not demonstrated this to be the exceptional case

warranting appellate intervention. The first and second assignments of error are

overruled.

               In the third and fourth assignments of error, Hunter claims that the

trial court erred by denying an oral motion for a mistrial that was based on several

statements not admitted into evidence after objections were sustained. According

to Hunter, the lead investigator testified or attempted to testify (1) to inquiring
about Hunter’s wife’s safety as he interviewed her; (2) to calling additional officers

to accompany him for officer safety to arrest Hunter; and (3) to a belief that

Hunter was “on the run” (which came out at the time the officer was testifying

about evaluating a phone to determine Hunter’s location). Importantly, all the

objections to the three isolated, unsolicited statements were sustained, and the

trial court provided the curative instruction for the jury to disregard the

inadmissible statements.

               Trial courts are entitled to “wide latitude” when considering motions

for a mistrial. State v. Gunnell, 132 Ohio St.3d 442, 2012-Ohio-3236, 973 N.E.2d

243, ¶ 28. Irregularities or errors in the trial process will not automatically require

the trial court to order a mistrial. State v. A.M., 8th Dist. Cuyahoga No. 106400,

2018-Ohio-4209, ¶ 23, quoting State v. Reynolds, 49 Ohio App.3d 27, 550 N.E.2d

490 (2d Dist.1988), paragraph two of the syllabus. A mistrial should be granted

only if the substantial rights of the accused are affected. Id. “In determining

whether a defendant was deprived of a fair trial, [appellate courts] must determine

whether, absent the error or irregularity, ‘the jury would have found the appellant

guilty beyond a reasonable doubt.’” State v. Junod, 3d Dist. Mercer No. 10-18-08,

2019-Ohio-743, ¶ 44, quoting State v. Morris, 10th Dist. Franklin Nos. 18AP-208

and 18AP-209, 2018-Ohio-5252, ¶ 44, and State v. Maurer, 15 Ohio St.3d 239,

267, 473 N.E.2d 768 (1984). In order to “determine whether the error resulted in

prejudice, [appellate courts] must consider (1) the nature of the error, (2) whether

an objection was made, (3) whether the trial court provided corrective instructions,
and (4) the strength of the evidence against the defendant.” Junod, citing Morris at

¶ 44.

               In this case, the unsolicited statements were immediately addressed

and, when relevant, curative instructions were provided to the jury. The state did

not rely on any of the isolated statements throughout the remainder of the trial. In

light of the overwhelming evidence, the victim’s testimony, and the DNA evidence

implicating Hunter, we cannot say that the trial court abused its discretion in

denying the motion for a mistrial.

               In the alternative, Hunter claims that the trial court erred by

admitting “overview” testimony from the “professional witnesses.” “Overview”

testimony, according to Hunter, is testimony from a “professional” witness such as

an investigating police officer who lacks direct knowledge of the facts of

consequence. We summarily overrule Hunter’s argument. Hunter claims that the

unsolicited statements from the investigating officer that were the basis of the

mistrial discussion were erroneously admitted through the guise of the state

providing “overview” evidence to explain the course of investigation.

               The trial court sustained objections to the identified statements, and

therefore, there can be no error in the admission of such evidence. The third and

fourth assignments of error are overruled.2


        2In light of the fact that Hunter has not demonstrated any reversible errors, we
need not consider the fifth and final assignment of error in which Hunter claims his
convictions should be reversed based on the cumulative-error doctrine. Cumulative
effect of errors may constitute an independent ground for reversal even though each
instance of trial-court error does not in and of itself constitute cause for reversal. State
              Hunter’s conviction is 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

MARY J. BOYLE, P.J., and
MARY EILEEN KILBANE, J., CONCUR




v. Tench, 156 Ohio St.3d 85, 2018-Ohio-5205, 123 N.E.3d 955, ¶ 277, quoting State v.
Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 223. Thus, the starting
premise of a cumulative-error claim is that the defendant has demonstrated multiple
instances of error.
