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State v. McSwain

Court of Appeals of Ohio, Eighth District, Cuyahoga

November 9, 2017


         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-609563-A.

          ATTORNEY FOR APPELLANT Thomas A. Rein.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Marcus A. Henry Katherine Mullin Assistant County Prosecutors.

          BEFORE: Blackmon, J., E.A. Gallagher, P.J., and Laster Mays, J.



         {¶1} Dorn McSwain ("McSwain") appeals from his convictions for various sex offenses and his accompanying sentence of ten years in prison and assigns the following errors for our review:

I. The trial court erred by failing to grant a judgment of acquittal, pursuant to Crim.R. 29(a), on the charges, and thereafter entering a judgment of conviction of those offenses as those charges were not supported by sufficient evidence, in violation of defendant's right to due process, as guaranteed by the Fourteenth Amendment for the United States Constitution.
II. Appellant's convictions are against the manifest weight of the evidence.
III. Appellant was denied his right to a fair trial when the trial court allowed expert testimony from a witness who was not deemed to be an expert.
IV. The trial court committed plain error by ordering convictions for separate counts because the trial court failed to make a proper determination as to whether those offenses are allied offenses pursuant to R.C. 2941.25 and they are part of the same transaction under R.C. 2929.14.
V. The trial court erred by ordering appellant to pay costs in the journal entry when it had previously suspended court costs on the record.

         {¶2} Having reviewed the record and pertinent law, we affirm the decision of the trial court. The apposite facts follow.

         Procedural History

         {¶3} On September 8, 2016, McSwain was indicted for the following offenses, alleged to have occurred on July 3, 2001: four counts of rape in violation of R.C. 2907.02(A)(2), a first-degree felony; gross sexual imposition ("GSI") in violation of R.C. 2907.05(A)(1), a fourth-degree felony; and kidnapping in violation of R.C. 2905.01(A)(4), with a sexual motivation specification, a first- degree felony.

         {¶4} McSwain's case was tried to the bench, and the court found him guilty of all but one count of rape. Appellant was sentenced on January 19, 2017, to ten years in prison for each rape and the kidnapping, and 18 months in prison for the GSI. All counts were to run concurrently for an aggregate sentence of ten years in prison.

         Trial Testimony

         {¶5} T.M. testified that on the night of July 2, 2001, she met her friend Joanne Kowalski at a bar called Fleet's Finest. T.M. drove by herself that night and parked across the street from the bar at a gas station. T.M. did not lock her car doors because she only had the key to the ignition. T.M. denied using "illegal narcotics, " "prescription narcotics, " or drinking alcohol "heavily that night. T.M. and Kowalski drank Bud Light over the course of "maybe an hour, " although T.M. could not remember how many beers she had. However, she felt "okay to drive." T.M. and Kowalski left the bar together and each went their separate ways toward their respective cars. According to T.M., her intention was to go to a friend's house on Gertrude Ave. in Cleveland that night.

         {¶6} T.M. got into her car, heard a noise, and turned around to look in the backseat. A black male was there, and he put a knife to her throat. The male told T.M. not to look at him and "just * * * to drive." T.M. drove to the E. 88th St. and Union Ave. area, where the male told T.M. to get in the backseat with him. "I - it's so foggy, like all of that. But I do remember at some point in time like him having the knife to my throat and him just telling me like he just wants to be able to get off and he just wants some pussy, that's all he wants."

         {¶7} T.M. testified that the male penetrated her vagina with his fingers and his penis, performed oral sex on her, made her perform oral sex on him, and touched her breasts. Eventually, the male ejaculated in T.M.'s vagina. After he "got off, " the male told T.M. that she was going to drop him off somewhere. Asked if the male still had the knife, T.M. testified, "It was there somewhere, I just don't know where at." T.M. dropped the male off at the corner of Broadway Ave. and Union Ave. T.M. testified that the sex was not consensual, and she did not feel free to leave her car.

         {¶8} T.M. went to a friend's house "and cried and cried and cried for hours." Eventually she took a shower, because she "felt nasty [and] dirty." T.M. went home, called her mother, and told her what happened. T.M.'s mother came to T.M.'s house. Although she could not recall an exact time frame, T.M. testified that her mother arrived at her house "probably about two or three hours" after the incident occurred. At this point, T.M. went to the hospital to report the rape. She told the hospital staff and the police what happened and was given a rape kit.

         {¶9} T.M. testified that she had never met this man before and he was a "stranger" to her. T.M. described him as being taller than she was, and "[i]t seemed like maybe he had some acne on his face or like maybe he had acne prior to that." The police showed T.M. "books and books of pictures just to look at, " but T.M. was unable to identify who raped her. "Not at that time. I didn't see anybody that looked even close to him."

         {¶10} In 2016, investigators went to T.M.'s house and told T.M. there was a lead in the case. One of the investigators showed T.M. a photo lineup, and T.M. identified the male who raped her in 2001. During her trial testimony, T.M. made an in-court identification of McSwain as the man who raped her.

         {¶11} Joanne Flynn [a.k.a. Kowalski] testified that, in July 2001, she met T.M. at Fleet's Finest for "a couple of beers." They were at the bar for "maybe an hour or so" before they got into their separate cars to leave. Several hours later, T.M. called Kowalski from the hospital and "[s]he said that when she got to her car that there was a guy in the backseat of her car and he pulled out a knife and told her where to drive and made her drive to a certain area, and then that he raped her, and that she had called the police and was at the hospital * * *."

         {¶12} Kowalski further testified that, sometime after this incident occurred, T.M. developed a drug problem. Specifically, T.M. "smoked crack and marijuana * * * [m]aybe a year, maybe not even a year" after she was raped.

         {¶13} T.M.'s mother testified that late one night in July 2001, T.M. called her "hysterical * * *, crying and carrying on, " and told her that she was attacked. "And I asked her where she was, and she said she was at home. And I said, well, I'll be right there. And so I left my house and went to her house. And when I got to her she was just hysterical, crying. And I said, we have to call an ambulance. We have to get you to the hospital. So that's what we did."

         {¶14} T.M.'s mother testified that T.M. "said she was raped. She was tortured for hours. This man had her in the car. I learned more once we got to the hospital and I went through everything with her. I was in the room. I ...

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