State v. Erker

• Decision Date: 08 August 2019
• Docket Number: No. 107790,107790
• Citation: 141 N.E.3d 543,2019 Ohio 3185
• Parties: STATE of Ohio, Plaintiff-Appellee, v. Raymond A. ERKER, Defendant-Appellant.
• Court: Ohio Court of Appeals

141 N.E.3d 543

2019 Ohio 3185

STATE of Ohio, Plaintiff-Appellee,

v.Raymond A. ERKER, Defendant-Appellant.

No. 107790

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: August 8, 2019

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Carson Strang, Assistant Prosecuting Attorney, for appellee.

Paul Daiker Law, L.L.C., and Paul B. Daiker, Cleveland, for appellant.

JOURNAL ENTRY AND OPINION

MARY J. BOYLE, J.:

{¶1} Defendant-appellant, Raymond A. Erker, appeals his convictions. He raises nine assignments of error for our review:

1. The defendant was denied federal and state due process under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution when he was convicted on evidence that was insufficient as a matter [of] law to sustain a conviction for burglary in count one.

2. The defendant was denied federal and state due process under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution when he was convicted on evidence that was insufficient as a matter [of] law to sustain a conviction for menacing by stalking in count two.

3. The defendant was denied federal and state due process under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution when he was convicted on evidence that was insufficient as a matter [of] law to sustain a conviction for telecommunications harassment in count three.

4. The trial court erred as a matter of law and to the prejudice of appellant by denying appellant's motion for judgment of acquittal, as to counts one, two and three of the indictment, pursuant to Crim.R. 29(A).

5. The judgments of conviction as to all counts are against the manifest weight of the evidence.

6. The trial court erred by allowing irrelevant and/or unfairly prejudicial alleged text communications that were outside the dates of the indictment to be presented to the jury.

7. The trial court erred to the prejudice of the defendant by allowing extensive prosecutorial misconduct during closing argument.

8. The trial court abused its discretion to the prejudice of the defendant by allowing testimony about the defendant's pretrial ankle bracelet to be admitted into evidence, as well as the trial court's failure to give a sufficient curative instruction and/or the [trial] court should have granted defendant's motion for new trial regarding the same.

9. The trial court erred to the prejudice of appellant by providing confusing, misleading and prejudicial jury instructions, thus creating confusion and the possibility of burden shifting, in violation of appellant's state and federal constitutional rights to due process of law, as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Section 10 of the Constitution of the state of Ohio.

{¶2} Finding no merit to his assignments of error, we affirm.

I. Procedural History and Factual Background

{¶3} In April 2018, a Cuyahoga County Grand Jury indicted Erker for one count of burglary in violation of R.C. 2911.12(A)(1), a felony of the second degree; one count of menacing by stalking in violation of R.C. 2903.211(A)(1), a felony of the fourth degree; and one count of telecommunications harassment in violation of R.C. 2917.21(A)(5), a felony of the fifth degree.¹ Erker pleaded not guilty to the charges. The trial court subjected Erker to GPS monitoring as part of his bond.

{¶4} The case proceeded to a jury trial in August 2018, where the following evidence was presented by the state.

{¶5} Erker married G.S., the victim, in October 2012. G.S. worked for the congregation of St. Joseph since 2003, and Erker was the chief executive officer for a water treatment company.

{¶6} Both Erker and G.S. had children from previous marriages: Erker had three children, and G.S. had two daughters, C.S. and S.S. G.S. and her daughters moved into Erker's home in Avon Lake, Ohio in 2013. After adding an addition onto the home, Erker put the house in his and G.S.'s name.

{¶7} G.S. described her relationship with Erker as "up and down" and "contentious from the very start." She said that both her daughters had "up and down" relationships with Erker as well. G.S. tried counseling with and without Erker.

{¶8} G.S. said that in 2013, Erker filed for divorce. She also agreed that Erker filed for divorce two more times throughout their marriage.

{¶9} In June 2016, G.S. separated from Erker, and she and her daughters moved out of Erker's home. G.S. said she moved out because "[t]here was just a lot of animosity, a lot of abuse, every kind, a lot of emotional [abuse], and [she] finally made the decision that it was enough." Prior to moving out, G.S. received a text message from Erker that read: "Sign the house over and leave. I'll fucking kill you. Like end your life. I will murder you. Like end your life. I will murder you. Dead." G.S. responded to the text, saying, "I'll be sure to keep these." Erker responded, "Dead."

{¶10} G.S. moved in with her sister, K.H.J., who lived in Medina, and G.S. stayed with her for three months.

{¶11} G.S. said that Erker knew she moved in with her sister and stated that despite moving out, Erker "never stopped" trying to contact her and that there was an "incalculable" amount of phone calls from him. G.S. admitted to trying to reconcile her relationship with Erker on numerous occasions and that she spoke with Erker consensually at times. She explained:

That time period was very difficult for me. I was very confused. I wouldn't say that I was trying to get him back; I was trying to figure out what was going on and what to do with the rest of my life. I didn't have a place to live. I was trying to be a parent to my daughters. There was communication and there was a period of time where I was vacillating.

I'd invested a lot in the relationship. I was very close to his children. I loved them. I was their mother for many years. I did things for them that their own mother didn't do. I'd built a family while we were married and my children were close to his children. Everybody had gone through the process of becoming a family so I was weighing everything, all decisions, very, very carefully and trying to figure out if this could be salvageable.

{¶12} During this time, K.H.J. found framed photographs and three vases of flowers in her garage that Erker had left. There were photographs of G.S., Erker, and the children and a vase for G.S., C.S., and S.S. G.S. stated that when she found out about the flowers and photos, she was "angry that he once again crossed a boundary and brought them to [her] sister's [house] when he knew they would not want him there." G.S. said that she never invited Erker to her sister's house.

{¶13} Also during the time that G.S. was living with her sister, Erker came to G.S.'s work uninvited to "deliver a new McIntosh computer." G.S. explained that Erker "had smashed and destroyed the three that [they] had at home and so he bought a new one and showed up unannounced and brought it into [her] work and gave it to [her] there." She said that Erker wrote on the back of the computer's packaging, "I was jacked up." G.S. explained that at that time "she was still trying to not bring [her] coworkers into it" and so instead of making a scene, she walked him outside and told him not to come to her work anymore. Despite that, G.S. said Erker showed up to her work again (although the date is not clear). She described one incident as follows: "He came in * * * when I was in the dining room having lunch with my coworkers and I saw him looking for me so I kind of moved behind one of my coworkers and he didn't find me and I think he left."

{¶14} In July 2016, G.S. invited Erker to attend a religious retreat with her, thinking that they could reconcile their relationship. Also during that month, G.S. invited Erker to go visit her uncle in Florida because her uncle had been divorced several times and "thought maybe he could counsel [them]." They, however, did not ultimately go to Florida.

{¶15} In September 2016, G.S. rented a house in Strongsville. At one point, G.S.'s landlord forwarded her an email that he had received from Erker on August 19, 2016, approximately one month before G.S. moved in, that — according to G.S.'s testimony² — read:

[Landlord,] This is Ray Erker, [G.S.'s] husband. We need to speak ASAP. Gina is not of sound mind and will not be able to pay you as promised. You are one of many that she has committed to that she cannot and will not pay. She is not well and cannot afford her place on Ash Drive in Strongsville for $1,800 a month.

Furthermore, I am not a gambler, never have been, and am in no way financially irresponsible. I am a successful and prominent business owner and have in no way contributed to [G.S.]'s bankruptcy. In fact, if you check your records, you will see that she filed for bankruptcy in 2010. We were not even married until 2012. Additionally, she divorced her previously financially solvent husband * * * years earlier, so it was not his fault either.

Please be advised that we are currently involved in legal proceedings and any contracts signed during this time will also be subject to subpoena and investigation. Please feel free to contact me directly at [Erker's phone number].

G.S. stated that she had no idea how Erker knew that she was moving into the Strongsville home and that she never gave Erker her landlord's email address.

{¶16} On November 6, 2016, Erker showed up at G.S.'s home around 8:00 p.m. and walked around the house looking into the home. G.S. said she did not invite Erker over. G.S. said she was afraid because Erker was "extremely unpredictable and volatile" and she did not know "if he would break in." G.S. and her daughters went upstairs to hide in a bedroom and called 911. Officers responded to G.S.'s residence and spoke with Erker and G.S. Officer Jacob Knipp testified that G.S....