State v. Gutierrez

Decision Date27 June 2011
Docket NumberCASE NO. 5-10-14
PartiesSTATE OF OHIO, PLAINTIFF-APPELLEE, v. RONNIE GUTIERREZ, DEFENDANT-APPELLANT.
CourtUnited States Court of Appeals (Ohio)
OPINION

Appeal from Hancock County Common Pleas Court

Trial Court No. 2008 CR 310

Judgment Affirmed in Part, Reversed in Part and Cause Remanded

APPEARANCES:

Keith O'Korn for Appellant

Mark C. Miller and Drew A. Wortman for Appellee

WILLAMOWSKI, J.

{¶1} Defendant-Appellant, Ronnie Gutierrez ("Gutierrez"), appeals the judgment of the Hancock County Court of Common Pleas finding him guilty of six counts of rape of his young step-daughter and sentencing him to life in prison without parole. Gutierrez contends that the trial court made numerous errors violating his constitutional and due process rights; that he was denied his right to an impartial jury; that the convictions were not supported by sufficient evidence and were against the manifest weight of the evidence; that he was denied effective assistance of counsel; and that the sentencing entry failed to impose the correct term of postrelease control. For the reasons set forth below, the judgment is affirmed in part and reversed in part.

{¶2} Gutierrez and Kelley Snyder (f.k.a. Kelley Gutierrez; hereinafter "Ms. Snyder" or "Mother") were married in December of 2005. Ms. Snyder's daughter, A.P. was just turning five years old at the time. A.P. seldom saw her biological father,1 and she called Gutierrez "daddy."

{¶3} During the 2006-2007 school year when A.P. was in kindergarten, A.P. began to exhibit behavioral problems and was not getting along with other children in school. Beginning in May of 2007, Ms. Snyder took A.P. to theFamily Resource Center ("FRC") for therapy sessions and A.P. began to meet regularly with Ms. Connie Sue Crego-Stahl ("Therapist" or "Ms. Crego-Stahl") at the FRC.

{¶4} One weekend in July of 2008, A.P., her Mother, and Gutierrez went on a family trip to The Wilds, a wild animal preserve in southeastern Ohio. Upon returning from the trip on the evening of July 13th, Gutierrez put A.P. to bed as he often did. The next morning while Ms. Snyder was getting ready, A.P. came into the bathroom and disclosed to her Mother that, "when daddy lays me down for bed * * * sometimes he rubs my stomach for a little while then he makes me suck his P.P." Ms. Snyder was shocked and upset. After confronting Gutierrez, she packed up their things and left with A.P. She later divorced Gutierrez.

{¶5} Ms. Snyder took A.P. to the Therapist for an emergency appointment that same day. A.P. told Ms. Crego-Stahl what she had told her Mother. The allegations were also reported to the police and the Hancock County Job and Family Services, Children's Protective Services Unit ("CPSU"). Ms. Crego-Stahl continued to meet with A.P. regularly to help her deal with the trauma of the abuse, and A.P. eventually shared that Gutierrez had also put his finger in her vagina and had anal sex with her.

{¶6} Brianna Westrick ("Ms. Westrick"), an investigator with the CPSU, and Detective Matthew Tuttle ("Detective Tuttle"), with the Findlay PoliceDepartment, investigated the matter and conducted a video-recorded forensic interview with A.P. on July 24, 2008. During the interview, A.P. was animated and happy when discussing her mother, her pets, and other activities. However, she became sullen, quiet, and looked down when she was asked what she liked about Gutierrez. She answered, "nothing," and then she disclosed the sexual abuse and physically demonstrated how Gutierrez would push her head up and down to force her to perform oral sex. A.P. stated that it had been happening all the time since she was in kindergarten, and she was now in second grade.

{¶7} On December 30, 2008, the Hancock County Grand Jury indicted Gutierrez of six counts of rape pursuant to R.C. 2907.02(A)(1)(b), all felonies of the first degree. The first three counts alleged that Gutierrez raped his stepdaughter, who was under ten years old, between September 5, 2006 and June 8, 2007, by making her perform fellatio on him (count one), by digitally penetrating AP's vagina (count two), and by sodomizing her (count three). Counts four, five and six alleged the same conduct for each of the respective counts, but "on or about" the date of July 13, 2008.

{¶8} There were numerous pre-trial motions and hearings. The defense challenged A.P.'s competency to testify. The trial court held an in camera hearing, interviewed A.P., and found A.P. competent to testify. Gutierrez also sought records from the FRC, the CPSU, and A.P.'s grand jury testimony. Thetrial court reviewed the records and the grand jury testimony under seal and found no inconsistencies or anything exculpatory to disclose; it denied Gutierrez' motions.

{¶9} The defense also sought to exclude testimony from other witnesses about statements made to them by A.P. and to exclude the playing of the forensic video at trial. The trial court found the statements and video were admissible.

{¶10} In March of 2010, the case proceeded to trial. During the two-day trial, the jury heard testimony from Ms. Snyder, Detective Tuttle, Ms. Westrick, Ms. Crego-Stahl, and A.P., who was nine-years old at the time. When A.P. testified, she was very uncomfortable about saying what had happened out loud, so she wrote on a piece of paper: "he made me suck on his P.P. and put his P.P. in my butt and his finger in my P.P." A.P.'s written testimony was placed on the ELMO for the entire court to see and both parties questioned her about her written statement.

{¶11} The jury returned guilty verdicts on all six counts of rape. On March 18, 2010, Gutierrez was sentenced to an aggregate prison term of life without parole.2 Gutierrez now appeals, raising the following eight assignments of error.

First Assignment of Error
The court violated Evid.R. 601 and denied Appellant his rights to due process of law and a fair trial guaranteed by the 5th and 14th Amendments to the U.S. Constitution, and Article I, Section 10 of the Ohio Constitution when the court found the child witness competent to testify.

Second Assignment of Error

The court violated the Brady rule and the Due Process and Confrontation Clauses of the U.S. and Ohio Constitutions by failing to order the State to disclose Brady material in the sealed records pertaining to the alleged victim's sex abuse claims and her grand jury testimony.

Third Assignment of Error

The court violated Appellant's right to present a defense and due process by not providing his consulting expert on tainted child-statements in sex offense cases with the sealed records and grand jury testimony relating to the questioning of the alleged victim.

Fourth Assignment of Error

The court violated Ohio's hearsay rules and state and federal due process and confrontation principles when it admitted statements made by the alleged victim to many third parties.

Fifth Assignment of Error

Appellant was prejudiced by the court's failure to excuse one of the jurors for cause, and the composition of the jury violated Appellant's right to an impartial jury under the 6th and 14th Amendments to the U.S. constitution.

Sixth Assignment of Error

Appellant's convictions were not supported by sufficient evidence in violation of the Due Process Clause of the 14th Amendments to the U.S. Constitution, and Article I, Sections 1 & 16 of the Ohio Constitution and the convictions were also against the manifest weight of the evidence.

Seventh Assignment of Error

The sentence is contrary to law.

Eighth Assignment of Error

Trial counsel rendered ineffective assistance of counsel in violation of the 6th Amendment to the U.S. Constitution, and Article I, Sections 10 and 16 of the Ohio Constitution.
First Assignment of Error

{¶12} In the first assignment of error, Gutierrez maintains that the trial court erred when it found that A.P. was competent to testify at trial. A.P. was between six and seven years old when the alleged abuse occurred, eight years old at the time of the competency hearing, and nine years old at trial. Although the trial court conducted a competency hearing, Gutierrez claims that A.P. was unable to satisfactorily answer many of the questions that were asked and that she was unable to establish her ability to recall events from the relevant time period. Gutierrez further contends that A.P. showed little ability to receive impressions or recall or communicate what she observed, particularly in the interval of one-to-three years prior to the hearing. And finally, Gutierrez asserts that the trial courtfailed to take into consideration A.P.'s "history of fabrication" and the fact that she was being treated at FRC for "lying."

{¶13} Evid.R. 601(A) provides that every person is competent to testify except children under ten years old "who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly." In determining whether a child under ten is competent to testify, the trial court must take into consideration whether the child is able to (1) receive accurate impressions of fact or to observe acts about which the child will testify, (2) recall those impressions or observations, (3) communicate what was observed, (4) understand truth and falsity, and, (5) appreciate the responsibility to be truthful. State v. Frazier (1991), 61 Ohio St.3d 247, 251, 574 N.E.2d 483. Because the trial court has the opportunity to observe the child's appearance, manner of responding to questions, general demeanor and ability to relate facts accurately and truthfully, its determination will not be reversed absent an abuse of discretion. State v. McNeill, 83 Ohio St.3d 438, 442, 1998-Ohio-293, 700 N.E.2d 596.

{¶14} A competency hearing was held on June 9, 2009, and the trial court questioned A.P. on various topics, including her age, her family, her residence, schooling, television shows, weather, how many fingers the judge was holding up, and the...

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