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State v. Strowder

Court of Appeals of Ohio, Eighth District, Cuyahoga

April 5, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
DASHAWN STROWDER DEFENDANT-APPELLANT

          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 Justice

          BEFORE: Blackmon, P.J., Laster Mays, J., and Jones, J.

          JOURNAL ENTRY AND OPINION

          PATRICIA ANN BLACKMON, PRESIDING JUDGE

         {¶1} 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 review:

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 felonious assault.
VI. [Strowder's] conviction for felonious assault and his other convictions are against the manifest weight of the evidence.

         {¶2} 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.

         {¶3} 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.

         Jury Trial

         {¶4} During the jury trial, the state presented the testimony of ten witnesses including S.W., the alleged victim of the offenses.[1] 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.

         {¶5} 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 called police.

         {¶6} 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 attackers' faces.

         {¶7} 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.

         {¶8} 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.

         {¶9} 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.

         {¶10} 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.

         {¶11} 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 to Strowder.

         {¶12} 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.

         {¶13} 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 ...


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