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State v. McDonall

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 24, 2018


          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-606531-A

          ATTORNEY FOR APPELLANT Joseph V. Pagano

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Edward R. Fadel Assistant County Prosecutor

          BEFORE: Boyle, J., Stewart, P.J., and Celebrezze, J.


          MARY J. BOYLE, JUDGE

         {¶1} Defendant-appellant, Raynard McDonall, appeals his rape and kidnapping convictions and his 20-year sentence. He raises six assignments of error for our review:

1. The trial court erred by denying the motion to dismiss because appellant was deprived of his federal and state rights to a speedy trial and due process by the undue preindictment delay.
2.Appellant was deprived of his Fifth and Sixth Amendment rights where counsel did not timely file pretrial motions, did not properly impeach the witness with her prior inconsistent statement and did not object to the flight instructions being read to the jury.
3. The trial court erred when it denied appellant's motion for acquittal under Crim.R. 29 because the state failed to present sufficient evidence to establish beyond a reasonable doubt the elements necessary to support the convictions.
4.Appellant's convictions are against the manifest weight of the evidence.
5. The trial court erred by failing to merge all allied offenses of similar import and by imposing separate sentences for allied offenses which violated appellant's state and federal rights to due process and protections against double jeopardy.
6. The trial court erred by imposing consecutive sentences that are contrary to law and not supported by the record.

         {¶2} We find no merit to McDonall's six assignments of error. We do find, however, that although the trial court stated that it was waiving the payment of fines and costs at the sentencing hearing, it imposed costs in the sentencing entry. We therefore remand for nunc pro tunc correction of the sentencing entry to reflect what actually occurred at the sentencing hearing.

         I. Procedural History and Facts

         {¶3} In May 2016, McDonall was indicted on six counts, including two counts of rape in violation of R.C. 2907.02(A)(2), two counts of aggravated robbery in violation of R.C. 2911.01(A)(1) and (A)(3), and two counts of kidnapping in violation of R.C. 2905.01(A)(2) and (A)(4). One of the kidnapping counts, R.C. 2905.01(A)(4), also contained a sexual motivation specification. McDonall was indicted on these charges after the Ohio Bureau of Criminal Investigation ("BCI") found a "preliminary association" between McDonall's DNA and the DNA of an unknown male that was obtained from a victim's rape kit in January 1997 (also referred to as a "CODIS" hit).[1] The following facts were presented to a jury.

         A. The Attack and Aftermath

         {¶4} The victim testified that on the night of January 18, 1997, she and her friend went out to celebrate their college graduation. They went to one bar until it closed, and then they went to a private club that was open "after hours." The private club opened around 3:00 a.m. It was a "neighborhood spot" where "everybody hung out." The victim was intoxicated that night because she had at least five or six alcoholic beverages containing "hard liquor."

         {¶5} The victim's friend left the after-hours club at some point, but the victim did not remember her leaving. In the very early hours of January 19, the victim went to her car to go home. It was still dark when she got to her car. As she was leaving, a man forced himself into her car and told her to drive. The man punched her in the face and threatened her. He made the victim drive about five or six blocks from the after-hours club. The victim knew the neighborhood because her mother lived "two to three streets over."

         {¶6} After the victim parked her car, the man "climbed over" and got on top of her. He pushed her driver's seat back and began hitting her in her face at least 10 or 15 times with what she later learned was the rearview mirror of her car. The man eventually stopped beating the victim and told her to climb in her back seat and take off her pants, which she did. She thought that the man might kill her. The man then climbed on top of her and vaginally raped her two times, ejaculating both times.

         {¶7} When the man was done raping her, he told her that he was going to get out of the car and that she should not look at him. He also told her to wait at least five to ten minutes before she went anywhere. She complied with what he told her to do. She waited for "a good 10, 15 minutes, " got dressed, put her coat on, and then ran to her mother's house. The victim remembered that the temperature was "below zero" that night, and she was very cold.

         {¶8} When she got to her mother's house, her younger brother answered the door. Her brother called 911. She went to the hospital in an ambulance. Medical personnel obtained a rape kit from the victim. The victim also talked to police at the hospital. The victim said that she still has vision issues with her left eye as a result of the attack.

         {¶9} The victim's friend who she had been out with on the night of the rape and the victim's then-fiancé, who came to the hospital on the night of the rape, both testified at trial. They essentially confirmed what the victim testified to about their relationship to the victim and what happened on the night of the rape and the days following the rape.

         B. The 1997 Investigation

         {¶10} The victim testified that she did not know who attacked her in 1997. She said that she drove around the neighborhood with detectives at that time trying to find the man who raped her. Although she testified that she did not know who raped her, she agreed that she gave police the names of two possible suspects in 1997: one was "Carl, " who was her "college buddy, " and the other was a man who worked at the after-hours club. She said that she thought her attacker was "Carl" because he "had similarities" to her attacker. According to the victim, both "Carl" and her attacker had similar eyes and a "dark complexion." She also thought that her attacker might have been the after-hours employee because she heard a rumor "in the neighborhood" that he liked her.

         {¶11} Dr. Vincent Ferrini examined the victim on the morning of the rape and obtained samples for the rape kit. Dr. Ferrini said that the victim told him that she thought she recognized her assailant. The victim told him that she thought her attacker was "Carl, " with whom she had gone to Glenville High School. The victim told Dr. Ferrini that "Carl" jumped in her car and told her to do what he said or he would hurt her. The victim did not know "Carl's" last name, and she did not think that he ever graduated from high school. Dr. Ferrini remembered that the victim was crying and very upset.

         {¶12} Lieutenant James Plent responded to the hospital in 1997. Lieutenant Plent collected the rape kit and took it to the police station. In his report from that time, he had noted that the victim went to high school with her attacker. He also noted that the man's name was"Carl" and that he worked at the after-hours club where the victim had been the previous night.

         {¶13} Cleveland Police Detective Carl Lessman worked on the victim's rape case in 1997. He met with the victim many times during the original investigation. At that time, the victim came to the police station and looked through folders of possible suspects. She picked out three men who "looked like" the suspect. The victim also told the detective in the original investigation that she believed she may "have gone to high school" with the man who raped her. The victim looked through her high school yearbook to try to find the man, which turned "out to be some guy named Carl, " but "that lead went nowhere."

         {¶14} The victim also gave Detective Lessman the name of another possible suspect in 1997. The detective placed this man's photo in a photo array, after which the victim identified him as the man who raped her. This man was indicted for the crimes against the victim, but was later exonerated after his DNA did not match the DNA from the victim's rape kit.

         {¶15} Detective Lessman said that police towed and processed the victim's car. They took photos of it and swabs from different spots in the car, which he believed "came back with some blood evidence." There was blood found on the steering wheel, console, and the back passenger side panel. The detective agreed that the report does not indicate whether the rearview mirror was retrieved from the victim's car. He could not say what happened to the rearview mirror.

         {¶16} The 1997 case was dismissed after the charged suspect was exonerated because police did not have any other leads on the case.

         C. The Revived Investigation

         {¶17} Scott Bellinger testified that he investigates "cold case sexual assaults" for the Cuyahoga County Prosecutor's Office. Investigator Bellinger became involved in this case in September 2015 after the CODIS hit preliminarily matched McDonall's DNA to the victim's 1997 rape kit. He prepared a photo array for the victim with McDonall's photo in it. He used a 1997 photo of McDonall and obtained a blind administrator to show the array to the victim. The victim circled McDonall's photo and wrote below it: "Suspect No. 3 looks familiar."

         {¶18} Investigator Bellinger obtained "buccal swabs" from McDonall to compare with the DNA from the victim's 1997 rape kit. He placed the known swabs in an envelope to be transported to BCI for DNA testing. Investigator Bellinger said that when he prepared the envelope to go to the lab, he filled out a form. The form included his interoffice case number, the lab number for this case, and the "RMS number, which is the Cleveland Police Department report number, " but he forgot to write McDonall's name on it. Investigator Bellinger further testified that his "submission sheet" also "said Raynard McDonall." When he received the report back from the lab, however, he was surprised to see that it said "unlabeled swabs." Investigator Bellinger went to the lab to clarify that the unlabeled swabs were taken from McDonall.

         {¶19} Lynda Eveleth, a forensic scientist in the DNA division of the Ohio BCI, performed DNA testing on samples from the victim's rape kit compared to Raynard's DNA. Eveleth testified that Raynard's DNA standard was contained in an envelope labeled "standard for Raynard McDonall, " but the swabs inside the envelope were unlabeled. She prepared a report indicating that the unlabeled swabs from the envelope labeled "standard from Raynard McDonall" matched the male DNA found in the victim's rape kit.

         {¶20} After Eveleth submitted her report, she was contacted by Investigator Scott Bellinger. Investigator Bellinger came to Eveleth's lab to identify the unlabeled swabs. Eveleth then generated a new report indicating that the unlabeled swabs were "identified to be the standard of Raynard McDonall on May 4, 2016 by Investigator Scott Bellinger of the Cuyahoga County Prosecutor's office." She concluded that the DNA profile from the rape kit matched McDonall's standard DNA profile.

         {¶21} Investigator Bellinger also spoke with the victim, the victim's friend who she was with on the night of the rape, the victim's fiancé at the time of the rape, and the man who was originally charged with the rape. After obtaining the DNA match, Investigator Bellinger sought an indictment against McDonall. Investigator Bellinger agreed that a 1997 photo of the man originally charged with raping the victim did not look anything like McDonall's 1997 photo.

         {¶22} McDonall did not appear for his arraignment on June 9, 2016. He was arrested about a week later in Wood County by Sheriff Deputy Kert Appelhans. Deputy Appelhans testified that he was at a Circle K when he began randomly running license plates. He ran the license plate of an unoccupied vehicle, and discovered that the vehicle was registered to an owner with a felony arrest warrant. Deputy Appelhans then saw a man walking toward him who matched the description on the warrant. As Deputy Appelhans got out of his marked vehicle, he said that McDonall saw him and immediately turned away from him and began walking the other way. Deputy Appelhans called out to McDonall, who complied with his order. He took McDonall into custody. When McDonall's car was later inventoried, police found a backpack with clothes, books, CDs, and McDonall's passport.

         {¶23} At the close of the state's case, McDonall moved for a Crim.R. 29 acquittal, which the trial court denied. McDonall rested and renewed his Crim.R. 29 motion, which the court again denied.

         D. Verdict and Sentence

         {¶24} The jury found McDonall guilty of rape in violation of R.C. 2907.02(A)(2) and kidnapping in violation of R.C. 2905.01(A)(4) with a sexual motivation specification. Before sentencing, McDonall argued that his convictions for rape and kidnapping were allied offenses of similar import. The trial court disagreed and imposed an aggregate sentence of 20 years in prison: 10 years for ...

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