[Cite as State v. Hernandez, 2019-Ohio-5242.]

                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                    :

                Plaintiff-Appellee,               :
                                                           No. 108265
                v.                                :

NELSON HERNANDEZ,                                 :

                Defendant-Appellant.              :


                               JOURNAL ENTRY AND OPINION

                JUDGMENT: REVERSED AND REMANDED
                RELEASED AND JOURNALIZED: December 19, 2019


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-18-630116-A


                                            Appearances:

                Michael C. O’Malley, Cuyahoga County Prosecuting
                Attorney, and Aqueelah A. Jordan, Assistant Prosecuting
                Attorney, for appellee.

                Brett M. Mancino, for appellant.


LARRY A. JONES, SR., J.:

                   Defendant-appellant, Nelson Hernandez (“Hernandez”), appeals his

convictions for gross sexual imposition and kidnapping with a sexual motivation

specification and his 18-years-to-life prison sentence. Finding merit to the appeal,

we reverse and remand for a new trial.
              In 2018, Hernandez was charged with two counts of rape with

sexually violent predator specifications, eight counts of gross sexual imposition with

sexually violent predator specifications, and two counts of kidnapping with sexual

motivation and sexually violent predator specifications. The indictment lists the

dates of the offenses from 2006 to 2012.

              Prior to trial, the state filed a notice of intent to use Evid.R. 404(B)

evidence of prior acts, specifically, evidence that Hernandez had sexually assaulted

a family member more than two decades prior to committing the acts that formed

the basis of his current indictment. Hernandez filed a motion to exclude the

evidence, and the trial court held a hearing on the matter. The trial court denied

Hernandez’s motion, and the matter proceeded to a jury trial.

              The following pertinent evidence was presented at trial.

              D.V. testified that she was currently 17 years old and Hernandez is her

grandfather. D.V. was adopted by her parents at the age of three. D.V. testified to

the following sexual assaults. When D.V. was five, D.V.’s mother gave birth to a child

but experienced health complications so D.V. went to stay with her grandparents.

On D.V.’s first night at her grandparents’ house, while her grandmother was away,

Hernandez went into D.V.’s room while D.V. was “half asleep.” D.V. testified that

Hernandez started touching her on her breasts and buttocks and digitally raped her.

Hernandez realized D.V. was not asleep and told her that she was only dreaming.

D.V. told her parents what had happened, but her parents did not believe her.
                When D.V. was six years old, Hernandez took her into the computer

room and sexually assaulted her by touching her vagina. When D.V. was nine years

old, Hernandez sexually assaulted her by touching her breasts and vagina. When

D.V. was ten years old, Hernandez sexually assaulted her by inserting a piece of

plastic into her vagina.

                At some point, D.V. testified, Hernandez told her that “something bad

would happen” and “he would hurt” either her parents or her sister if she told anyone

about the abuse.      D.V. testified that all the assaults occurred when D.V.’s

grandmother was not home. She further testified that Hernandez never forced D.V.

to touch him.

                The grandmother died in 2012, and D.V. testified that Hernandez did

not sexually assault her after her death. D.V. again disclosed the abuse, this time in

2017, to a family friend. In January 2018, D.V. told her close cousin. Her cousin

told another family member and that family member, N.G., disclosed that she too

had been sexually abused as a child by Hernandez.

                N.G. testified at trial. Hernandez married her mother shortly after

they moved to the United States from Puerto Rico when she was nine years old. N.G.

testified that Hernandez sexually assaulted her from age 9 until age 17. Hernandez

forced “oral sex” on her, forcibly touching her vagina, and forced her to touch his

penis until he ejaculated. The abuse occurred when they were alone together and

“every few weeks,” but decreased as she got older. N.G. told her mother about the
abuse when she was 18. The abuse was never reported, and Hernandez was never

charged in connection with the assaults against N.G.

               Cleveland Police Detective Richard Durst (“Detective Durst”) testified

that he was assigned the investigation into the alleged sexual assaults against D.V.

As part of his investigation, he interviewed N.G. Detective Durst testified that when

he arrested Hernandez, he asked about N.G.           According to Detective Durst,

Hernandez told the detective, “that act occurred more than 25 years ago.”

               The jury convicted Hernandez of six counts of gross sexual imposition

with sexually violent predator specifications and one count of kidnapping with

sexual motivation and sexually violent predator specifications. Prior to sentencing,

the state moved to dismiss the sexually violent predator specifications. The court

sentenced Hernandez to an aggregate sentence of 18 years to life in prison and

classified him as a Tier II sex offender.

               Hernandez filed a timely notice of appeal, raising five assignments of

error for our review. The first assignment of error is dispositive of this appeal.

Assignments of Error

      I. The trial court denied the appellant his constitutional right to due
      process under the Fifth, Sixth and Fourteenth Amendments of the
      United States Constitution and Article 1, Sections 10 and 16 of the
      Ohio Constitution when it admitted other acts evidence from 30 years
      prior as to sexual acts committed by the appellant when he was thirty
      years old.


      II. The trial court denied the appellant his constitutional right t0 due
      process under the Fifth, Sixth, and Fourteenth Amendments of the
      United States Constitution and Article 1, Sections 10 and 16 of the
      Ohio Constitution when it denied the appellant’s moti0n for judgment
      of acquittal as t0 the kidnapping, count 4.


      III. The appellant’s conviction for kidnapping was against the
      manifest weight of the evidence.


      IV. The trial court denied the appellant his constiuti0nal right to due
      process under the Fifth, Sixth and Fourteenth Amendments of the
      United States Constitution and Article 1, Sections 10 and 16 of the
      Ohio Constituti0n when it did not properly instruct the jury as to the
      kidnapping counts because it did not instruct the jury with regard to
      leaving the victim in a safe place unharmed.

      V. The trial court denied the appellant his constitutional right to due
      process under the Fifth, Sixth and Fourteenth Amendments of the
      United States Constitution and Article 1, Sections 10 and 16 of the
      Ohio Constitution because it did not instruct the jury that any
      restraint or removal needed to be significant.

Improper Other Acts Evidence

              In the first assignment of error, Hernandez claims that the trial court

erred when it admitted evidence in violation of Evid.R. 404(B).

              The admission of evidence lies within the broad discretion of a trial

court, and a reviewing court should not disturb evidentiary decisions in the absence

of an abuse of discretion that has created material prejudice. State v. Hart, 2018-

Ohio-3272, 118 N.E.3d 454, ¶ 28 (8th Dist.), citing State v. Noling, 98 Ohio St.3d

44, 2002-Ohio-7044, 781 N.E.2d 88, ¶ 43.

              Pursuant to Evid.R. 404(B), evidence that an accused committed a

crime other than the one for which the accused is on trial is not admissible when its

sole purpose it to show the accused’s propensity or inclination to commit a crime, or
that the accused acted in conformity with bad character. Hart at ¶ 29, citing State

v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 15.

              R.C. 2945.59 and Evid.R. 404(B) provide exceptions that allow other

acts of wrongdoing to be admitted into evidence. R.C. 2945.59 provides:

      In any criminal case in which the defendant’s motive or intent, the
      absence of mistake or accident on his [or her] part, or the defendant’s
      scheme, plan, or system in doing an act is material, any acts of the
      defendant which tend to show his [or her] motive or intent, the
      absence of mistake or accident on his [or her] part, or the defendant's
      scheme, plan, or system in doing the act in question may be proved,
      whether they are contemporaneous with or prior or subsequent
      thereto, notwithstanding that such proof may show or tend to show
      the commission of another crime by the defendant.

               Evid.R. 404(B) provides that evidence of other crimes, wrongs, or

acts is permitted to show proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or the absence of mistake or accident.

              To determine whether other acts evidence is admissible, the court

conducts a three step analysis: (1) the court considers whether the other acts

evidence is relevant to making any fact that is of consequence to the determination

of the action more or less probable than it would be without the evidence (Evid.R.

401); (2) the court considers whether evidence of the other crimes, wrongs, or acts

is presented to prove the character of the accused in order to show activity in

conformity therewith or whether the other acts evidence is presented for a legitimate

purpose, such as those stated in Evid.R. 404(B); and (3) finally, the court considers

whether the probative value of the other acts evidence is substantially outweighed
by the danger of unfair prejudice. (Evid.R. 403). Williams, 134 Ohio St.3d 521,

2010-Ohio-5695, 983 N.E.2d 1278, at ¶ 20.

                In this case, the state alleged that the other acts evidence was

admissible under the exceptions of (1) scheme or plan to show identity or (2) to show

Hernandez’s intent.

      Scheme, Plan, or System

                In State v. Curry, 43 Ohio St.2d 66, 330 N.E.2d 720 (1975), the Ohio

Supreme Court explained that evidence of a defendant’s “scheme, plan, or system”

in doing an act is relevant in only two situations: (1) when the other acts are part of

one criminal transaction such that they are inextricably related to the charged crime,

or (2) when a common scheme or plan tends to prove the identity of the perpetrator.

Id. at 72-73.

                At the hearing, the state argued that the other acts evidence should be

admissible to show identity, arguing that “when the defendant denies a crime being

committed, identity actually becomes a material issue of fact” and the evidence

should be allowed “in order to establish common scheme, plan, system that support

the defendant’s identity[.]”

                Counsel for Hernandez disagreed, arguing that other acts evidence

that is admissible to show identity is admissible when the identity of the perpetrator

is unknown to show that the perpetrator committed a “signature crime,” that is, that

the perpetrator committed a previous crime in the same manner as the current

crime. Defense counsel argued that, in this case, the identity of the perpetrator was
not unknown; no one was questioning the identity of who sexually abused D.V. ─

Hernandez was outright denying he had committed these acts.

              The trial court ruled that it would allow the other acts into evidence,

stating:

      I think it is somewhat of a signature crime, given the age of the victims,
      the nature of the alleged sexual conduct, the relationship between the
      defendant and the alleged victims, as well as the manner of grooming
      and statements concerning consequences if one were to disclose this
      information.

              The trial court ruled the other acts evidence was admissible because

the assaults against D.V. and N.G. were “signature crimes” based on the (1) age of

the victims; (2) nature of the alleged sexual conduct; (3) familial relationship; (4)

grooming of the victims; and (5) statements he made to N.G. and D.V. to keep them

from telling anyone about the abuse.

               As stated above, evidence of other acts may prove the issue of identity

in two instances. The first instance, which does not apply to this case, is when the

other acts ‘“form part of the immediate background of the alleged act which forms

the foundation of the crime charged in the indictment,’ and which are ‘inextricably

related to the alleged criminal act.’” State v. Lowe, 69 Ohio St.3d 527, 531, 634

N.E.2d 616 (1994), quoting Curry, 43 Ohio St.2d at 73, 330 N.E.2d 720.

              The second instance is when the evidence of other acts establishes a

modus operandi, a “unique, identifiable plan of criminal activity[,]” that is

applicable to the crime with which the defendant is charged. Lowe at id., citing State

v. Jamison, 49 Ohio St.3d 182, 552 N.E.2d 180 (1990), syllabus. A certain modus
operandi provides a “behavioral fingerprint which, when compared to the

behavioral fingerprints associated with the crime in question, can be used to identify

the defendant as the perpetrator.” Lowe at id. But identity is an issue only when

the fact of the crime is open and evident but the perpetrator is unknown and the

accused denies that he or she committed the crime. State v. Ogletree, 8th Dist.

Cuyahoga No. 94512, 2011-Ohio-819, ¶ 36, citing State v. Smith, 84 Ohio App.3d

647, 666, 617 N.E.2d 1160 (2d Dist.1992). In this case, there was never an issue as

to the identity of the alleged perpetrator ─ the victim readily identified Hernandez

as her abuser.

                 Thus, the other acts evidence was not admissible to show identity.

      Intent

                 The state also argues that the other acts evidence was admissible to

show Hernandez’s intent. We disagree.

                 The state contends that Hernandez’s intent was one of sexual

gratification, and his plan was to “target young females” he was related to in order

to fulfil that intent. This court has held, however, that the intent to obtain sexual

gratification is inherent in the crimes of rape. Hart, 2018-Ohio-3272, 118 N.E.3d

454, at ¶ 39. We find the same to be true for the crime of gross sexual imposition of

a child under the age of 13, R.C. 2907.05(A)(4), as charged in this case, because

consent is not at issue. Compare Williams, 134 Ohio St.3d 521, 2012-Ohio-5695,

983 N.E.2d 1278 (finding testimony that the defendant received “some type of

sexual gratification” was relevant to show that the defendant’s intent was sexual
gratification. See R.C. 2907.01; 2907.05(A)(1)). Therefore, the state did not need

any extrinsic evidence to prove Hernandez’s intent to commit the crimes of rape or

gross sexual imposition.1

      Motive, Preparation, Plan

                Although not succinctly stated as such in its brief, the state appears to

argue that the evidence was properly admitted to show Hernandez’s motive,

preparation, and plan to target young female children he was related to and sexually

assault them.

                N.G. alleged that Hernandez sexually assaulted her more than two

decades prior to sexually assaulting D.V. Although there was a familial relationship

between Hernandez and the victims, there was no evidence that he “groomed” his

victims, let alone that he “groomed” D.V. in a same or similar manner as he

“groomed” N.G. See Williams at ¶ 21 (The state offered other acts evidence to

demonstrate the motive, preparation, and plan of the accused to target teenage

males who had no father figure and to gain their trust and confidence for the purpose

of grooming them for sexual activity with the intent for the accused to be sexually

gratified.); see also United States v. Chambers, 642 F.3d 588, 593 (7th Cir.2011)

(“Grooming refers to deliberate actions taken by a defendant to expose a child to

sexual material; the ultimate goal of grooming is the formation of an emotional



      1The state does not argue that the other acts evidence was admissible to show
Hernandez’s intent to kidnap D.V. with a sexual motivation; we will not consider an
argument not made.
connection with the child and a reduction of the child’s inhibitions in order to

prepare the child for sexual activity.”). Although Hernandez used his relationship

with D.V. to facilitate the abuse, the abuse began the first time D.V. remembered

being alone with him when she went to stay with her grandparents after her little

sister was born. Likewise, N.G. testified that Hernandez began abusing her soon

after she moved to Cleveland. There was no evidence presented that he “groomed”

either child prior to the abuse.

               There were also differences between the frequency and type of the

sexual assaults. D.V. testified to a few separate and distinct occurrences over a five

year period of sexual assault that included the forcible touching of her breasts,

buttocks, and vagina; digital penetration; and penetration using a piece of plastic.

N.G. testified that Hernandez sexually assaulted her “every few weeks” over an eight

year period by forcing cunnilingus on her and forcing her to touch his penis until he

ejaculated. Unlike N.G., D.V. testified that Hernandez never forced her to touch

him.

               Finally, Hernandez allegedly told D.V. and N.G. not to disclose the

abuse. The court stated that this was part of Hernandez’s unique plan and therefore

admissible as other acts evidence. On appeal, the state contends that Hernandez’s

efforts to prevent his victims from disclosing the abuse because of family

relationship is “common” and “what we typically see through the process of

grooming.” We agree with the state to a point; certainly it is not rare for a

perpetrator, especially one who is abusing a young family member, to warn his or
her victim about consequences of disclosing the abuse. However, as mentioned

above, there was no evidence of “grooming.” Thus, we conclude that Hernandez’s

efforts to prevent D.V. and N.G. from disclosing the abuse are neither evidence of

grooming nor evidence of his “plan.”

              Thus, while the other acts evidence may be relevant, it does not show

Hernandez’s preparation and plan or targeting or grooming of D.V.

              Next, we consider whether the other acts evidence was presented to

prove the character of the accused in order to show activity in conformity therewith,

or whether the other acts evidence is presented for a legitimate purpose. After a

thorough review of the record, and noting the 25 year difference between when the

abuse of N.G. and D.V. allegedly occurred, we find no legitimate purpose for which

the evidence was admitted in this case other than to show Hernandez acted in

conformity with his alleged past behavior.

              The final step is to consider whether the probative value of the other

acts evidence is substantially outweighed by the danger of unfair prejudice. The

state argues that any unfair prejudice was mitigated by the limiting instruction the

court gave to the jury with regard to the other acts evidence. We disagree. The other

acts evidence, that being N.G.’s testimony, as well as Detective Durst’s testimony

that Hernandez told him that the “act” involving N.G. occurred more than 25 years

ago, was of very little relevance in this case other than to demonstrate that

Hernandez acted in conformity with his alleged pattern of having committed prior

acts of sexual abuse.
              The admissibility of other acts evidence is carefully limited because of

the substantial danger the jury will convict the defendant solely because it assumes

the defendant has a propensity to commit criminal acts, or deserves punishment

regardless of whether he or she committed the crime charged in the indictment. See

Curry, 43 Ohio St.2d at 68, 330 N.E.2d 720. This danger is particularly high when

the other acts are similar to the charged offense, or of an inflammatory nature.

Ogletree, 8th Dist. Cuyahoga No. 94512, 2011-Ohio-819, at ¶ 39, citing State v.

Schaim, 65 Ohio St.3d 51, 59, 600 N.E.2d 661 (1992). “Because of the severe social

stigma attached to crimes of sexual assault and child molestation, evidence of these

past acts poses a higher risk, on the whole, of influencing the jury to punish the

defendant for the similar act rather than the charged act.” State v. Miley, 5th Dist.

Richland No. 2005-CA-67, 2006-Ohio-4670, ¶ 59. In a case where the evidence is

of a particularly inflammatory nature, a curative instruction may be insufficient to

cure the prejudicial effect. State v. Patterson, 5th Dist. Stark No. 2017CA00022,

2017-Ohio-8970, ¶ 36-37.

              This case involved other acts evidence of prior acts of alleged sexual

abuse against a family member, the defendant’s stepdaughter, which were of limited

probative value to the charged acts of sexual abuse against D.V., but highly

prejudicial due to the age of the victim and the inflammatory nature of the evidence.

Although the court’s limiting instruction may have lessened the impact of the

evidence to some extent, we find the instruction insufficient to cure the prejudicial

effect.
                 The exceptions offered by the state for admission of the other acts

evidence are inapplicable to this case and no other exception applies. Accordingly,

the trial court abused its discretion in allowing the other acts testimony. We

therefore sustain the first assignment of error and reverse and remand for a new

trial.

                 The second through fifth assignments of error are moot based on our

disposition of the first assignment of error. See App.R. 12(A)(1)(C).

                 Judgment reversed; case remanded.

         It is ordered that appellant recover from appellee costs herein taxed.

         The court finds there were reasonable grounds for this appeal.

         It is ordered that a special mandate issue of this court directing the common

pleas court to carry this judgment into execution.

         A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



LARRY A. JONES, SR., JUDGE

PARTICIA ANN BLACKMON, P.J., and
ANITA LASTER MAYS, J., CONCUR
