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State v. Henderson

Court of Appeals of Ohio, Second District, Montgomery

January 3, 2020

STATE OF OHIO Plaintiff-Appellee
v.
JAMONE M. HENDERSON, JR. Defendant-Appellant

          Criminal Appeal from Common Pleas Court Trial Court Case No. 2017-CR-2999

          MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Atty. Reg. No. 0095826, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, Attorney for Plaintiff-Appellee

          TRAVIS KANE, Atty. Reg. No. 0088191, Attorney for Defendant-Appellant

          OPINION

          TUCKER, J.

         {¶ 1} Defendant-appellant Jamone M. Henderson, Jr. appeals from his conviction and sentence for rape, tampering with evidence, and aggravated burglary. Henderson contends that the trial court erred by denying his motion to suppress the one-person show-up identification made by the victim. He further contends that the trial court erred by interviewing a juror outside the presence of the defense and by subsequently dismissing that juror from deliberations. Henderson also claims that the trial court erred by certifying a State's witness as an expert in the presence of the jury. He further claims that his convictions were not supported by the weight of the evidence. Finally, Henderson claims that the trial court erred in sentencing.

         {¶ 2} We conclude that Henderson has failed to demonstrate that his convictions were not supported by the manifest weight of the evidence. We further conclude that the trial court did not err by denying Henderson's motion to suppress identification testimony. We cannot say that the trial court erred with regard to its interview with or subsequent dismissal of a juror. While we find it would have been the better course of action not to "certify" a witness as an expert in the jury's presence, we cannot say that Henderson has shown plain error. Finally, we conclude that the trial court did not err with regard to the imposition of consecutive sentences.

         {¶ 3} Accordingly, the judgment of the trial court is affirmed.

         I. Facts and Procedural History

         {¶ 4} On August 30, 2017, the victim, R.A., her boyfriend and her children moved into a townhome located in Kettering, Ohio. On the evening of September 23, 2017, R.A.'s boyfriend left for work, and R.A.'s two older children were staying the night at her sister's home. Only R.A. and her youngest child remained at home. R.A. put her child to bed around 10:00 or 11:00 p.m. She unintentionally fell asleep beside him while she was watching television.

         {¶ 5} At some point during the early morning hours of September 24, 2017, R.A. awakened and noticed a man standing at the end of her bed. The individual, who was holding a knife, told R.A. to turn around. He also asked her if she wanted to die. Because her four-year old child was in the bed with her, R.A. asked to leave the bedroom. The man grabbed her by the hair and walked her downstairs to the living room. The man then pushed her to the corner of the couch and told her to put her head on the couch. When she complied, the man pulled her leggings down to her knees, inserted his penis into her vagina, pulled out, and inserted his penis into her anus. The man then tried to smother R.A. with a blanket while telling her that he would kill her if she told anyone about the assault. When a car's headlights shone through a window into the room, the man ran out the back sliding glass door. The entire incident lasted approximately 30 minutes. Thereafter, R.A. called 911 and reported the attack.

         {¶ 6} Kettering Police Department Officer Joshua Wolf was the first to respond to R.A.'s residence. He arrived at her home at approximately 2:00 a.m. Wolf interviewed R.A., who described the perpetrator as a shorter black male with shoulder-length dreadlocks wearing a light blue shirt and blue pants. Officer Devin Maloney arrived next with his K-9, who began tracking the suspect from R.A.'s back door. Maloney was accompanied by Kettering Police Sergeant Douglas Gaudette, who had also arrived on scene.

         {¶ 7} Maloney, Gaudette and the K-9 traveled through a courtyard and a playground located behind R.A.'s townhome. When they were approximately 300 feet from R.A.'s townhome, they observed two males exiting an apartment building. Because one of the males matched R.A.'s description, Maloney identified himself and Gaudette as Kettering Police. The male matching the description walked quickly away and then began running as he went around a corner of the building. Maloney yelled at him to stop and also indicated that he had a K-9 unit. When the officers came around the corner, they observed the male with his hands in the air. The male, who was later identified as Henderson, was no longer wearing a shirt. After searching the area, Gaudette located a knife and shirt behind some bushes approximately eight to ten feet away from Henderson; the police observed a backpack a few feet to Henderson's other side.

         {¶ 8} Wolf, who had remained with R.A., received a radio call that a suspect had been located. Wolf asked R.A. whether she would be able to identify her assailant. R.A. indicated that she would, and Wolf then drove her to where Henderson was being detained. Henderson was placed in front of Wolf's cruiser, and R.A. was able to identify him as her assailant. Wolf then transported R.A. to Kettering Hospital.

         {¶ 9} At the hospital, R.A. was examined by Sexual Assault Nurse Examiner (S.A.N.E.) Samantha Griffith. Griffith observed abrasions to R.A.'s arm and buttock. Griffith took swabs of R.A.'s anus and vagina. DNA testing was conducted on the rape kit as well as the knife and shirt found near Henderson. The swab from R.A.'s anus matched Henderson's DNA. R.A.'s DNA was found on the knife.

         {¶ 10} On October 4, 2017, Henderson was indicted on two counts of rape (force or threat of force) in violation of R.C. 2907.02(A)(2); one count of kidnapping (sexual activity) in violation of R.C. 2905.01(A)(4); one count of aggravated burglary (physical harm) in violation of R.C. 2911.11(A)(1); one count of aggravated burglary (deadly weapon) in violation of R.C. 2911.11(A)(2); one count of tampering with evidence in violation of R.C. 2921.12(A)(1); and one count of obstructing official business in violation of R.C. 2921.31(A). A jury trial commenced on November 26, 2018.

         {¶ 11} On November 29, the jury began deliberations, then was excused for the night at approximately 4:45 p.m. The following day, the jury sent a message to the trial court stating, "one juror * * * has stated she is uncomfortable with making a decision based on previous family experience. She has requested to be replaced on the jury." Court's Exh. No. IV. The trial court discussed the matter with the prosecutor and defense counsel and indicated that the court would interview the juror[1] without the presence of counsel. Defense counsel objected to being excluded from the interview. The trial court noted the objection but proceeded to conduct the following colloquy with the juror without counsel present:

THE COURT: Okay, ma'am. I've got this note now. Before I talk to you
JUROR X: Yes.
THE COURT: - - couple of things I want to be clear. I don't want to know anything about your jury deliberations.
JUROR X: Okay.
TRIAL COURT: Or where you are.
JUROR X: Okay.
TRIAL COURT: But this - - I'm a little confused - -
JUROR X: Yeah, when they - - when they brought it, because it's not - - it is a family experience, but it didn't affect me because I was not born at the time that it happened. But it was just - - So can I talk about what she said on the stand, the victim? No, I can't.
TRIAL COURT: No. No, I don't want you to go into your thought - - right now as far as being a member of the jury - - why do you want to be excused?
JUROR X: Because I can't decide guilty or not guilty.
TRIAL COURT: In any way, shape, or form?
JUROR X: No.
TRIAL COURT: So it's not just that - -
JUROR X: Yeah, it's like - -
TRIAL COURT: - - (indiscernible) than the others - -
JUROR X: No.
TRIAL COURT: So it's not just that - -
JUROR X: Yeah, it's like - -
TRIAL COURT: - - (indiscernible) than the others - -
JUROR X: No.
TRIAL COURT: - - or anything else - -
JUROR X: It's just - - I cannot decide and I don't feel comfortable - - and I - - I thought that I would be comfortable, but I'm not. It's like the last couple of days I haven't been able to sleep.
TRIAL COURT: Okay, just relax. So let me - - I need to - - I apologize, I need to ask you a couple of follow-up questions. Just relax, ma'am.
JUROR X: Thank you.
TRIAL COURT: Okay, in voir dire obviously you didn't bring it up.
JUROR X: Yes.
TRIAL COURT: Did you think it was not relevant to?
JUROR X: No, I did not think it - - it's not relevant to the case at all. What - - what it is. It's not relevant to the case at all. It didn't affect me in any shape or form. (Indiscernible) hold anything, like (indiscernible) or anything like that, or emotional thing. It was just - - I'm not okay with making a decision. You know, it's - - I can't talk about the case, but I'm not okay with making a decision. I'm just not, because - - it could go both ways and I'm not okay with making a decision.
TRIAL COURT: At all?
JUROR X: No.
TRIAL COURT: And this has - - this is not because - -
JUROR X: No it's just - -
TRIAL COURT: - - you agree or disagree with other jurors, it's - -
JUROR X: No.
TRIAL COURT: - - just emotionally you can't; is that what you're telling me?
JUROR X: No, it's not emotionally, because I don't feel like I'm emotionally connected; it's just - -
TRIAL COURT: (Indiscernible)
JUROR X: Yeah. Because I don't want to make a decision with someone's life. It's just - - I don't want to - - and I thought I would be able to and I thought that it - - but it's just - - actually when we sit down and deliberate I just - - I can't.
TRIAL COURT: So - -
JUROR X: And I can't discuss what we've discussed, so of course I can't.
TRIAL COURT: But - - but this is what - - it's not - - this is - - there's - - there are two different things.
JUROR X: Okay.
TRIAL COURT: One is if you just feel you're different from the others and - - and that's a problem with you, or there's something about your makeup or whatever where the process is something you can't take part in, and I'm not sure what it is. You know what I'm saying?
JUROR X: It's - - it - -I don't know. I - - I want to say it's the process of, you know, because I believe - - I partially believe stuff and then I partially don't believe stuff, and I can't make a decision.
TRIAL COURT: So you feel that being part of a deliberating body is not what you should be doing?
JUROR X: Yeah, I don't - - I don't - - no. No.
TRIAL COURT: If - - we went further - -
JUROR X: Yes.
TRIAL COURT: And without telling me what it is - -
JUROR X: Okay.
TRIAL COURT: - - because I don't care what it is. Okay?
JUROR X: Yeah.
TRIAL COURT: As you're deliberating with the jury, have you been able to voice an opinion - - I don't want - - I don't want to know whether he was not guilty or not guilty [sic], or are you still at the point where you're just saying - -
JUROR X: I've voiced my opinion. Yes.
TRIAL COURT: Okay. And what changed then?
JUROR X: I can't - - I can't say a hundred percent that she - -
TRIAL COURT: Okay, I don't want to - -
JUROR X: Okay. I'm sorry.
TRIAL COURT: Okay. So - - but I guess part of it is, if you just feel like you're not agreeing with the others - -
JUROR X: Yeah.
TRIAL COURT: - - then - - then basically - -
JUROR X: And I don't think it's that; it's just I'm not comfortable with making the decision.
TRIAL COURT: Because you're not agreeing with the others ...

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