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State v. Magwood

Court of Appeals of Ohio, Eighth District, Cuyahoga

April 26, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
JONATHAN MAGWOOD DEFENDANT-APPELLANT

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-611500-A

          ATTORNEYS FOR APPELLANT Mark A. Stanton Cuyahoga County Public Defender By: Noelle A. Powell Jeffrey Gamso Assistant Public Defenders

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Daniel A. Cleary Assistant County Prosecutor Justice

          BEFORE: McCormack, J., E.A. Gallagher, A.J., and S. Gallagher, J.

          JOURNAL ENTRY AND OPINION

          TIM McCORMACK, JUDGE

         {¶1} Defendant-appellant Jonathan Magwood appeals his conviction for kidnapping, rape, and petty theft. For the reasons that follow, we affirm in part and reverse in part.

         I. Procedural History

         {¶2} On November 17, 2016, Magwood was charged with three counts of rape in violation of R.C. 2907.02(A)(2), one count of kidnapping in violation of R.C. 2905.01(A)(4), with a sexual motivation specification, and petty theft in violation of R.C. 2913.02(A)(1). The charges stem from an incident that occurred on August 10, 2016, in a public restroom with one victim, "T.J."

         {¶3} Following a bench trial, the court found Magwood guilty on all counts. The court then sentenced Magwood to 11 years imprisonment on each of the rape counts and 6 months on the petty theft count, and it noted that the kidnapping merged with the rape. The court ordered the sentences of the first two rape counts to be served consecutively, while the remaining sentences would be concurrent. The total aggregate prison term is 22 years.

         II. Evidence at Trial

         {¶4} At trial, the state presented the following witnesses: the victim, T.J.; Cleveland police officers, Maria Velez and Kerry Adams; Cleveland police detective, Morris Vowell; sexual assault nurse examiner ("SANE"), Angella McMahan; and Amanda Bushnell. The state also admitted the following exhibits, without objection: the 911 call; T.J.'s medical records, which included notes taken by the SANE nurse; the rape kit; and the video surveillance footage provided by Taco Bell. Magwood testified on his own behalf.

         {¶5} T.J. testified that in the afternoon of August 10, 2016, she took the bus from her home in Lakewood to the area of W. 110th Street and Lorain Avenue in Cleveland to get money from her sister, who was working at the grocery store in the area's shopping plaza. She met with her sister for approximately 15 minutes and then walked to the nearby McDonald's to charge her cell phone, which was "completely dead, " and to eat. While sitting in the McDonald's, Magwood approached T.J., said hello, and explained to T.J. that the outlets at McDonald's were not working. T.J. stated that Magwood eventually left McDonald's.

         {¶6} T.J. then left McDonald's in order to find a place to charge her phone. While heading to the Subway restaurant, she noticed Magwood in front of Subway selling CDs. T.J. stated that he told her to go to the nearby Taco Bell to charge her phone.

         {¶7} T.J. walked to Taco Bell. When she arrived, she proceeded to the ladies' restroom and locked the door. The restroom was near the front door where she entered. It was a single use restroom with one toilet and one sink. T.J. testified that before leaving the restroom, she noticed someone was trying to get into the restroom. Upon eventually opening the restroom door to leave, someone pushed the door open and entered the restroom. T.J. stated that this person locked the door and then "slammed" her face into the mirror above the sink and told her to keep quiet.

         {¶8} T.J. then proceeded to testify how the man who pushed himself into the restroom raped her. He pulled her pants down to her ankles and took his own clothes off. He continued to hold her face to the mirror and told her to remain quiet when he placed his penis inside her, first anally and then vaginally, while she was bent over the sink. She repeated that her face was "still slammed into the mirror." One hand held her face to the mirror, while the other hand was around her waist, holding her. She stated that she wanted to move but she could not. T.J. stated that the man entered her anally and vaginally multiple times while repeatedly telling her to remain quiet. At some point, the man "threw" T.J. onto the floor. As she sat on the floor, she now recognized the man as Magwood, the individual who told her to go to Taco Bell. Magwood then put his penis in her mouth and ejaculated on her face and her shirt. He told her to "clean yourself up, " and he left.

         {¶9} T.J. testified that after Magwood left, she sat on the floor and cried. She stated that she "sat there until I figured out I needed to leave." She got dressed, left Taco Bell, and headed to the adjacent Burger King to charge her phone that was still "dead, " where she "broke down crying." T.J. stated that she got "weird looks" from the people in the restaurant, but she did not tell anyone what happened because she was too scared. After charging her phone, she left Burger King and called her friend, Amanda Bushnell ("Mandy").

         {¶10} Mandy testified that T.J., who is her best friend, phoned Mandy "around 1:30ish" in the afternoon on August 10, while Mandy was getting ready for work. Mandy testified that T.J. only called, rather than texted, when it was "important." Mandy stated that at first, T.J. did not say anything, but when Mandy asked T.J. what was wrong, T.J. "burst into tears." Mandy became concerned because T.J. sounded "very scared" and "she seemed like she just wanted to disappear at this point." Mandy testified that T.J. then explained that she was raped in the Taco Bell restroom. Mandy told T.J. to call the police or she would call them for her. Mandy explained that T.J. was reluctant to call the police because "she was scared and she just didn't want to deal with anything and she didn't know what was going to happen."

         {¶11} Mandy testified that she texted T.J. throughout the night of the incident to ensure that her friend was all right. She stated that during this entire time, T.J. was very scared and unsure of what was going to happen. Mandy also stated that after the rape, T.J. became depressed and began "pushing people away."

         {¶12} After T.J. phoned her friend, she went to the rapid transit station and called 911.

         {¶13} Officer Velez testified that on August 10, 2016, at approximately 3:15 p.m., she and her partner responded to a call from dispatch regarding a reported rape. When the officers arrived on the scene, they found T.J. inside the rapid transit station with the rapid transit officers. Officer Velez stated that T.J. seemed "shook up, scared, * * * uneasy" and when she asked T.J. what happened, T.J. "wasn't very willing to say what happened. She seemed scared to explain * * *." T.J. eventually opened up to the officers, recounting the incident to them. Officer Velez testified that T.J. was emotional, crying at times, and seemed to be in shock. After speaking with T.J. for approximately three or four hours, Officer Velez drove T.J. to the hospital for a SANE examination. The officer noted that while waiting for the nurse, T.J. seemed to be on an "emotional roller coaster, " because she was alternating between crying and keeping to herself.

         {¶14} Officer Adams testified that he and his partner also responded to the dispatcher's report of a rape. Officer Adams stated that when they arrived at the rapid station, he observed Officer Velez and her partner speaking with the victim, who appeared scared and shy. Officer Adams obtained information concerning the reported rape and proceeded to the Taco Bell, where the rape was reported to have occurred hours earlier. The officer was able to view the video surveillance footage from the restaurant from that afternoon. After observing the surveillance, the officers canvassed the area for the suspect to no avail.

         {¶15} At Fairview Hospital, SANE nurse, Angella McMahan, obtained T.J.'s history, or "narrative, " of what happened earlier in the day. She explained that obtaining a victim's history is important because it guides the nurse's examination and treatment of the patient. The nurse observed that T.J. was "very quiet, " she would pause many times while explaining to the nurse what happened, looking away or looking at the floor as she talked, she was "tearful, " and "[s]ometimes she just had to stop and couldn't keep speaking." McMahan documented T.J.'s narrative, during which T.J. reported that she had been raped in a Taco Bell restroom in Cleveland.

         {¶16} During her testimony, McMahan read T.J.'s narrative aloud:

Patient states, "It happened today (8/10/16) between 12:30-1:30 p.m. I was followed into the Taco Bell bathroom and I was raped. * * * I was going into the Taco Bell to charge my phone. They did not have a place that I could charge my phone at the McDonald's. I was at the McDonald's before * * *. I did not want to travel without my phone.
I went into the bathroom to the right at Taco Bell. Someone was knocking. It is a bathroom for one person. The guy pushed himself in. I was thrown onto the sink and he pulled down my pants and that's when it all started. Uh, I was raped both ways."
[Patient] now quiet and teary eyed. [Patient] unable to speak. SANE RN assured [patient] that she could take her time. SANE RN asked [patient] what do you mean by raped both ways? [Patient] states, "He put his penis in my vagina and my butt. He also put his penis in my mouth. He threw me to the ground. When he threw me to the ground he put it ([patient] referring to assailant's penis) in my mouth and grabbed my face.
I tried to push him away and it wouldn't work. He was crouched over me." [Patient] is quiet again, and teary eyed. SANE RN asked [patient], did he ejaculate? [Patient] states, "Yep, in front of me with his penis in his hand, all over my face and shirt." SANE RN asked [patient] if assailant licked, kissed, or bit her anywhere? [Patient] states, "No." [Patient] quiet again. [Patient] states, "He was black. He kept telling me 'to be quiet.' He had a book bag on and he was taller than me. When he was done he said, "Now you have to clean yourself up.' I threw up afterwards two times. I ran to Burger King down the street. I had to get my phone on. I charged my phone. I didn't know what to do. After I took the bus to the rapids. My friend told me to call the cops. We called the cops. The cops brought me here (FGH) from the rapid."
SANE RN asked [patient] if there was anything else? [Patient] states, "I was bleeding vaginally and rectally after he did that." SANE RN asked [patient] when was your last menstrual period? [Patient] states, "Last week. My period already stopped."

         {¶17} Thereafter, at the end of the narrative, McMahan recorded as follows: After exam and collection of SAEC kit, [patient] states, "He followed me from McDonald's. I remember seeing him at McDonald's first. He took my money, a little less than $50 and my debit card." SANE RN asked [patient] if there was anything else she wanted to share? [Patient] states, "No."

         {¶18} The SANE nurse then testified that it is common for patients to relay information out of sequence during the examination, because

there's a neurobiologic response to trauma and your thoughts can be scattered; you may not remember every detail from A to Z. You might skip from point A to point K, back to point B. Sometimes things will trigger their memory that we do during the exam or after an exam, and they will just suddenly utter something that they remembered that they did not remember when they gave us their history.

         {¶19} McMahan stated that T.J. consented to an examination and photographs, but she declined any photographs of her genital region. McMahan testified that T.J. complained of lower right pelvic and abdominal pain. Based upon T.J.'s complaint and the ...


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