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State v. Buchanan

Court of Appeals of Ohio, Eighth District, Cuyahoga

April 13, 2017

STATE OF OHIO, PLAINTIFF-APPELLEE
v.
TOMMY J. BUCHANAN, DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-588303-A.

          ATTORNEY FOR APPELLANT Ronald A. Skingle

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Denise J. Salerno Assistant County Prosecutor

          BEFORE: McCormack, J., E.A. Gallagher, P.J., and Celebrezze, J.

          JOURNAL ENTRY AND OPINION

          TIM McCORMACK, JUDGE

         {¶1} Defendant-appellant Tommy Buchanan appeals from a judgment of the Cuyahoga County Court of Common Pleas that convicted him of rape following a jury trial. Buchanan was accused of forcing a 14-year-old girl, L.F., into his vehicle while she was on her way to school, driving her several blocks to a parking lot, and raping her. The incident occurred in 1994 but the crime remained unsolved until 2013, when Buchanan's DNA was matched to the rape kit collected from the 14-year-old on the day of the incident. After a careful review of the record and applicable law, we affirm Buchanan's conviction.

         Substantive Facts and Procedural History

         {¶2} After the DNA match, on August 14, 2014, Buchanan was indicted of rape and kidnapping, both counts accompanied with a three-year firearm specification. At the time of his indictment, he was serving a lengthy prison term for a prior rape conviction. Because of his mental health conditions, a trial initially scheduled for May 4, 2015, was cancelled and he was referred to the Court Psychiatric Clinic for a competency and sanity evaluation. After Buchanan was evaluated, a trial was subsequently scheduled nearly one year later for May 2, 2016.

         {¶3} On the very day of his trial, Buchanan's counsel informed the court for the first time that Buchanan wanted to proceed pro se. After a thorough, extensive colloquy with Buchanan, the trial court denied his request for self-representation.

         {¶4} Before the trial, the state moved to amend the date of the offense from August 22, 1994, to December 23, 1994. The state explained that the rape kit was collected on the day of the incident, December 23, 1994, but the indictment inadvertently listed August 22, 1994, as the date of the offense. The court granted the amendment on the ground that the defendant was claiming consensual sex instead of asserting an alibi defense. The defense objected to the amendment but did not ask for a continuance of trial.

         {¶5} The testimony by the state's witnesses, including L.F. herself, reflects that in the early morning of December 23, 1994, L.F. took an RTA bus to enable her to then catch her school bus. After she got off the RTA bus, as she was walking to the school bus stop, a car drove by and then turned around. The driver forced her inside the car. The driver, whom she had never seen before, locked the car door and told her he had a gun. He drove several blocks and parked the car in the back of a parking lot of an apartment building on Kenmore Avenue. He then punched her in the face and forced her to engage in intercourse with him. After he finished the assault, he told her to get out of the car and drove off. L.F. walked across the parking lot and saw a woman who appeared to be leaving for work. L.F. approached her and asked for help. The woman, Vanessa Hurt, also testified at trial.

         {¶6} Hurt corroborated L.F.'s testimony. On that morning, as she was leaving for work, a young girl, who was crying and appeared upset, told her she had been raped by a man who took her from a bus stop. Hurt brought L.F. inside her apartment and called the police. An ambulance took L.F. to the hospital. The nurse who treated her at the hospital testified at trial as well. She recalled that L.F.'s mother and a school board member came to the hospital and a rape kit was collected.

         {¶7} The police however were unable to identify the man until 2013, when a test of the rape kit linked Buchanan to the incident. When presented with a photo array 20 years later, L.F. was only able to identify Buchanan with a 50% certainty.

         {¶8} Buchanan testified on his own behalf. His testimony was rambling and disjointed. Initially when interviewed by the police, he denied knowing L.F. He testified that he knew L.F. around December 1994. He implied L.F. was a prostitute at the time; he first met her when she was "walking back and forth on the sidewalk like she was flagging down cars." She told him she was 20. He testified that he had sex with her on four occasions. On the day she accused him of raping her, they had sex behind a dumpster in a parking lot on Kenmore Avenue. He asserted that she went to the police afterward because on that day she told him she was pregnant by him and he denied being the father.

         {¶9} The jury found Buchanan guilty of rape, but not guilty of kidnapping or the firearm specification. The trial court sentenced him to 11 years in prison, to be served consecutively to the prison term he was serving for his prior conviction of a sex offense.

         {¶10} On appeal, Buchanan raises two assignments of error for our review. They state:

1. The trial court violated appellant, Tommy Buchanan's constitutional right to self representation by denying him the ability to defend himself at trial without the assistance of counsel.
2. The trial court erred by granting the state's motion to amend the date of the offense in the indictment of the date of trial.

         Self-representation

         {¶11} Under the first assignment of error, Buchanan claims the trial court violated his constitutional right of self-representation. We review this claim for an abuse of discretion. State v. ...


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