Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-16-604551-A
ATTORNEY FOR APPELLANT Jonathan N. Garver
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor Carl Mazzone Assistant County Prosecutor
BEFORE: Blackmon, P.J., Laster Mays, J., and Jones, J.
JOURNAL ENTRY AND OPINION
PATRICIA ANN BLACKMON, PRESIDING JUDGE
Appellant Dashawn Strowder ("Strowder") appeals
from his convictions for rape, kidnapping, robbery, and
felonious assault, following a mandatory transfer from
juvenile court. He assigns the following errors for our
I. The mandatory transfer of [Strowder] by the juvenile court
to adult court for purposes of criminal prosecution
constitutes a denial of due process of law in violation of
the Fourteenth Amendment to the Constitution of the United
States and Article I, Section 16, of the Constitution of the
State of Ohio.
II. The mandatory transfer of [Strowder] by the juvenile
court to adult court for purposes of criminal prosecution
constitutes a denial of equal protection of the laws in
violation of the Fourteenth Amendment to the Constitution of
the United States and Article I, Section 2, of the
Constitution of the State of Ohio.
III. The 50-year term of imprisonment for rape and related
offenses allegedly committed by [Strowder] while he was a
juvenile constitutes cruel and unusual punishment and a
denial of due process of law in violation of the Eighth and
Fourteenth Amendments to the Constitution of the United
States and Article I, Sections 9 and 16, of the Constitution
of the State of Ohio.
IV. The special instruction given by the court for attorney
jurors singles out attorney jurors and encroaches upon their
ability to fully participate in jury deliberations, thereby
depriving [Strowder] of his right to a trial by jury,
guaranteed by the Sixth Amendment to the Constitution of the
United States and Article I, Section 10, of the Constitution
of the State of Ohio.
V. The evidence is insufficient to support a conviction for
VI. [Strowder's] conviction for felonious assault and his
other convictions are against the manifest weight of the
For the sake of clarity, we shall address the third assigned
error last. Having reviewed the record and pertinent law, we
affirm the convictions, but reverse and remand for
resentencing. The apposite facts follow.
This case originated in juvenile court when then-17-year-old
Strowder was charged in connection with offenses alleged to
have occurred on or about April 21, 2013. Following a
mandatory bindover, Strowder and codefendant Isaiah Campbell
("Campbell") were indicted in a nine-count
indictment. As is relevant herein, Strowder was charged with
three counts of rape with sexually violent predator
specifications, two counts of kidnapping, with one count
alleging both a sexual motivation specification and a
sexually violent motivation specification, aggravated
robbery, felonious assault with a sexual motivation
specification, grand theft (motor vehicle), and receiving
stolen property, in violation of R.C. 2913.51(A). All counts
also contained one-year and three-year firearm
specifications. Strowder pled not guilty and the matter
against him proceeded to a jury trial on January 24, 2017.
During the jury trial, the state presented the testimony of
ten witnesses including S.W., the alleged victim of the
offenses. S.W., who was 44 years old at the time of
trial, testified that on April 21, 2013, she went out with
her sister and her sister's boyfriend. S.W. consumed a
vodka drink before leaving home and one or two glasses of
wine while out. At approximately 2:00 a.m., she proceeded to
her home in East Cleveland. While en route, she stopped at a
stop light on Hayden Avenue at the intersection of Claiborne
Avenue, and looked downward to light a cigarette. When she
looked up again, she spotted two individuals with black hoods
drawn tightly over their heads running toward her car. Both
were armed. As she struggled to lock the car doors, one
individual entered the car through the passenger door, and
the other entered through the rear driver's side door.
The individual in the back seat held a gun to the back of
S.W.'s head, ordered her to drive, and instructed where
to turn, while the individual seated in the front passenger
seat also pointed a gun at her. They eventually ended up on
East 134th Street near some abandoned houses.
S.W. testified that the individual seated in the front seat
grabbed her head and ordered her to perform oral sex on him.
The men then ordered her to the back seat to complete the sex
act on the first man, while the second man vaginally raped
her. After that, the men ordered her to perform oral sex on
the second man, while the first man vaginally raped her. The
men rummaged through S.W.'s purse, ordered her from the
car, and fled in her vehicle. S.W. ran to find help, then
S.W. admitted that she was shown a photo array and identified
an individual who was later excluded from involvement in this
matter. She was also shown a second photo array and indicated
that she "truly believe[d]" that another person was
the assailant, and that a fourth person "could be"
the assailant, but both were also excluded from involvement.
S.W. explained that she could only see part of the
Cuyahoga County Deputy Sheriff Shannon Cushman ("Deputy
Cushman") responded to the scene at approximately 3:00
a.m. He observed that S.W. was hyperventilating and
hysterical. Deputy Cushman stated that she seemed slightly
intoxicated. S.W. also reportedly told Deputy Cushman that
the second individual attempted to vaginally rape her but was
unable to do so.
University Hospitals Sexual Assault Nurse Examiner
("SANE") Denise Robinson ("Nurse
Robinson") testified that she completed a sexual assault
examination and rape kit in this matter. She collected
S.W.'s clothing, swabbed her for evidence, and examined
her for injuries and signs of trauma.
CM., S.W.'s stepbrother, testified that a few days after
the incident, he spotted S.W.'s car traveling in East
Cleveland. He followed it, but the occupants abandoned the
car. One of the occupants, who had a cast on his arm, fired a
shot at CM. as he fled. However, no DNA evidence related to
the assault on S.W. was found inside the car.
Ohio Bureau of Criminal Investigation ("OBCI")
analyst Brenda Butler ("Butler") testified that she
obtained approximately five fingerprints, three partial palm
prints, and three shell casings from two different guns in
S.W.'s car. The prints were not linked to Strowder, but
were instead from two other individuals.
OBCI forensic scientists Deidre Hartz ("Hartz") and
Emily Feldkris ("Feldkris") analyzed the DNA
samples obtained during the SANE examination. The oral swabs
contained semen that was a mixture from two individuals,
Strowder and Campbell. The probability of finding this same
DNA profile in the general population was one in a trillion
as to Campbell and one in 780, 000, 000 as to Strowder. One
of the swabs from S.W.'s underwear also contained a
mixture from both Strowder and Campbell. The probability of
finding this same DNA profile in the general population was
one in 92, 940, 000 as to Campbell and one in a trillion as
Cuyahoga County Deputy Sheriff Yashila Crowell ("Deputy
Crowell") testified that based upon the fingerprint
evidence obtained in this matter, she prepared a photo array
for S.W. She identified an assailant, but his DNA profile was
not contained in the bodily fluid swabs from the rape kit,
and he was excluded from involvement. S.W. was shown another
array, and she incorrectly identified two other individuals
who do not have a connection to this case, and failed to
identify Strowder's photograph.
Deputy Crowell and East Cleveland Police Detective Ernest
Stanford ("Det. Stanford"), interviewed Strowder
and he acknowledged that in April 2013, he had a cast on his
arm, and that he had a gun. However, he denied ...