Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
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,
JOURNAL ENTRY AND OPINION
PATRICIA ANN BLACKMON, J.
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.
Having reviewed the record and pertinent law, we affirm the
decision of the trial court. The apposite facts follow.
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.
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.
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
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."
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
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
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."
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.
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 * * *."
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.
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
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 ...