Man files appeal in sex crime conviction

An Elyria man is appealing his conviction on sex crimes citing improper actions by prosecutors and his own defense counsel.

A brief was filed Aug. 22 in Lorain County Common Pleas Court that details five issues 39-year-old Edwin Rivera requests the Ninth District Court of Appeals to examine.

According to the filing, Rivera was indicted Aug. 29, 2013, on two counts of sexual battery and a single count of gross sexual imposition.

On Nov. 15, 2017, a jury convicted Rivera on sexual battery and gross sexual imposition after a threeday trial.

Rivera was sentenced the following January to three years of community control and ordered to register as a tier III sex offender for the rest of his life.

Lorain County Prosecutor Dennis Will said Rivera’s Aug. 22 appeal actually is an amended appeal, because the initial filing was over the court’s page-limit.

Rivera’s first claim of error is that the prosecution improperly bolstered the credibility of the victim in the case.

This error is the result of the state’s use of an Elyria police detective as a witness and what she’d testified to, the documents say.

The detective repeatedly testified to hearsay and double hearsay “in an attempt to bolster (the victim’s) credibility and the state’s case in general,” according to the filing.

Hearsay, which the rules of evidence defines as “a statement other than one made by the (witness) while testifying at the trial or hearing, offered to prove the truth of the matter asserted,” is generally inadmissible in a criminal trial.

These hearsay statements include things the victim allegedly told her, things the mother of the victim allegedly told her and what the victim’s mother told the detective that other people had told her, the filing says.

The statements were not allowed to enter into the trial without comment, though, as the filing quotes Common Pleas Judge Raymond J. Ewers, who presided over the trial, admonishing the defense for failing to object to the testimony, the filing says.

“This is getting to the point that this could be overturned,” Ewers said during the detective’s testimony. “This is way out of whack. This case cannot be proved through hearsay, especially when somebody told somebody what somebody told somebody.

“This is going to be overturned. (The detective) needs to be reeled in quick. You need to object.”

Ewers chose not to strike any of the hearsay statements from the record and did not instruct the jury to disregard them, the filing says.

The appeal alleges the state also allowed the detective to testify as an expert in sexual assault cases, despite her lack of continuing training in the field and also that at the time of her testimony, she no longer was employed as a detective with the Elyria Police Department.

She specifically testified about delayed reporting of sexual assault and the grooming process commonly used by those who commit them, according to the suit.

The detective’s testimony was designed to impugn the character of Rivera and to fire up negative feelings with the jury against him, the filing says.

Ewers once more stepped in, in lieu of any objections from the defense.

“We don’t have any type of medical person here to give expert testimony on what people do or say,” he said in a sidebar published in the official transcript of the case. “And her explaining to the jurors how they should react to it is inappropriate and improper. It’s not going to happen. I am not going there.

“The jurors can make up their own minds. But for her to get into grooming and this and that, we know how she feels. That’s why the guy was indicted. But it’s up to the jury to make these decisions, not for her to tell them how to feel.”

The second error is that Baker, whose name was not listed in the filing, gave ineffective counsel, the appeal says.

The suit cites the previous quotes from Ewers urging Baker to object to several statements made by the detective and testimony about allegations made years before Rivera was indicted.

It also says Baker should have moved for a mistrial.

Baker declined to comment on the appeal.

Prosecutors are accused of misconduct, “even after being warned by the trial judge to stop,” according to the third reason for appeal.

Again, the filing returns to the prosecution’s continued questioning of the detective despite previous admonishment by Ewers as well as the questioning of another witness on issues outside of their expertise.

Will said the previously mentioned errors are incompatible with each other.

“That’s an issue for the court to decide,” he said. “We’ll address it. This isn’t anything we haven’t seen before. I don’t believe there was any prosecutorial misconduct.”

The fourth error outlined is that Rivera’s conviction was “against the manifest weight of the evidence.”

The filing claims that without the improper testimony of the detective and other problematic evidence presented in the trial, Rivera would not have been convicted.

The fifth error claims that even when viewed in a light most favorable to the prosecution, the evidence presented at trial was not legally sufficient to find Rivera guilty beyond a reasonable doubt.

Prosecutors, according to the filing, did not establish that the victim was “substantially” impaired, which the law identifies as an essential element of the crimes Rivera was accused of.