State v. Cowan

Appeal from Allen County Common Pleas Court Trial Court No. CR 2022 0101

F. Stephen Chamberlain for Appellant

John R. Willamowski, Jr. for Appellee

OPINION

GWIN, J.

{¶1} Defendant-appellant David A. Cowan, III ["Cowan"] appeals his conviction and sentence after a jury trial in the Allen County Court of Common Pleas.

Facts and Procedural History

{¶2} On April 14, 2022, the Grand Jury issued an indictment against Cowan charging him with Rape, Attempted Rape and two counts of Sexual Imposition. On August 11, 2022, a Superseding Indictment was filed with the following charges:

Count One: Rape, from on or about Sept. 1, 2021 through December 11, 2021, by force or threat of force, a felony of the first degree in violation of R.C. 2907.02(A)(2) / 2907.02(B)

Count Two: Unlawful Sexual Conduct with a Minor, from on or about Sept. 1, 2021 through December 11, 2021, minor thirteen but less than sixteen years old and defendant ten or more years older, a felony of the third degree in violation of R.C. 2907.04(A) / 2907.04(B)(3)

Count Three: Attempted Rape, from on or about Sept. 1, 2021 through December 11, 2021, by force or threat of force, a felony of the second degree in violation of R.C. 2923.02 / 2907.02(A)(2) / 2907.02(B);

Count Four: Rape, from on or about December 12, 2012, by force or threat of force, a felony of the first degree in violation of R.C. 2907.02(A)(2)/ 2907.02(B);

Count Five: Rape, from on or about December 12, 2012, substantially impaired victim, a felony of the first degree in violation of R.C. 2907.02(A)(1)(c) / 2907.02(B);

Count Six: Unlawful Sexual Conduct with a Minor, from on or about December 12, 2012, minor thirteen but less than sixteen years old and defendant ten or more years older, a felony of the third degree in violation of R.C. 2907.04(A) / 2907.04(B)(3);

Count Seven: Gross Sexual Imposition, from on or about December 12, 2012, substantially impaired victim, a felony of the fourth degree in violation of R.C. 2907.05(A)(5) / 2907.05(C)(1);

Count Eight: Sexual Imposition, from on or about December 12, 2012, defendant eighteen or older and more than four years older than victim and victim thirteen but less than sixteen years old.

{¶3} Trial before a jury was held on March 7, 2023 through March 9, 2023. Count 8 was dismissed by the state prior to the commencement of the trial. 1T. at 1-2.^[1]

C.K., the minor N.W.'s guardian

{¶4} C.K.^[2] was called as a witness by the court. 2T. at 203-204. C.K. who is not related, has been the guardian of N.W. (b. Aug. 22, 2007)^[3] since the child was two years old. 2T. at 205; 243. C.K. and Cowan began a relationship in 2020. Id. at 206. By late summer of 2021, C.K., N.W. and C.K.'s four children moved in with Cowan. Id. In the fall of 2021, C.K. and Cowan gave birth to a son. C.K. testified that Cowan is a smoker. Id. at 210.

September 1, 2021 through December 11, 2021

N.W.'s testimony

{¶5} N.W. testified that there were several times at night when she would wake up and Cowan would be standing in her bedroom in the dark. 2T. at 256. Neither N.W. or Cowan spoke during these occurrences. Id. at 257. N.W. would pretend to be asleep and Cowan would leave after five to ten minutes. Id.

{¶6} However, in October 2021, N.W. testified that she woke up to find Cowan on top of her in her bed. 2T. at 261. N.W. heard the jingle of his belt buckle as Cowan removed his pants. Id. at 262. N.W. froze as she felt Cowan's hands near her shoulder and his legs by hers. N.W. began to feel a poking below her belly button that hurt. Id. at 263.

N.W. described the pain as a ten on a scale of one to ten. N.W. described the pain as located in her vagina. Id. at 264. N.W. described feeling Cowan's penis in her vagina. Id. at 264-265. She testified that it hurt. She said Cowan remained on top of her for what seemed like thirty minutes. N.W. testified that her pajama bottoms and her underwear were pulled down around her ankles. Id. at 266. N.W. did not tell anyone what had occurred because she was scared. Id. at 267.

{¶7} In October 2021, Cowan again entered N.W.'s bedroom during the nighttime. 2T. at 268. Cowan stood near the head of her bed as she pretended to sleep. N.W. heard Cowan's belt unbuckle and felt her head being pulled toward him. Id. at 269. Cowan was moving her head with his hands. N.W. turned her head away; however, Cowan attempted several more times to pull her head toward him. 2T. at 271. After hearing a noise coming from outside the room, Cowan hurriedly left her bedroom. Id. at 272-273. N.W. told no one about this incident claiming she was scared to tell anyone. Id. at 273. N.W. testified that she does not smoke. Id. at 282.

December 12, 2021

{¶8} In the early morning hours of December 12, 2021, C.K. woke up and noticed that Cowan was not in their bed. 2T. at 211. C.K. got out of bed and began to look for Cowan. Id. at 211-213. Upon opening N.W.'s bedroom door, C.K. saw Cowan inside the room facing the closet while fixing his pants. Id. at 214-215. C.K. flipped on the lights and saw that N.W.'s pajama pants and underwear were pulled down and she

was exposed. Id. at 215-216, 276. C.K. also found Cowan's belt on the bed. Id. at 216. C.K. called 9-1-1 and told the operator that she had caught Cowan in her fourteen-year-old daughter's room. Id. at 219; State's Exhibit 1.

{¶9} N.W. testified that around 3:00 a.m. she heard the closet door in her bedroom open. She woke up to the light on and C.K. screaming at Cowan. 2T. at 275. N.W. testified that her pajama bottoms and her underwear were pulled down to below her knees. Id. at 276. She saw Cowan pulling up his pants. Id. at 277. She heard Cowan tell C.K. that he was in N.W.'s bedroom checking the heating vents. Id. at 278.

{¶10} After the police arrived C.K. and others accompanied N.W. to the hospital for a sexual assault examination. 2T. at 280-281, 344. At the hospital, N.W. told the Pediatric Sexual Assault Nurse Examiner ["PSANE"] that she felt pain in her vagina and that it hurt to urinate. 2T. at 280-281.

{¶11} The samples taken during the examination by the PSANE were positive for acid phosphatase, an enzyme found in semen, vaginal secretions and saliva. 2T. at 383; 3T. at 412. There was no indication of any sperm cells present in the samples. Id. at 413. The swabs showed that Cowan's STR DNA (him individually) was found on the skin swab taken from N.W.'s face and Cowan's Y-STR DNA (Cowan's paternal male lineage) was found in the vaginal samples, anal samples, and facial skin swabs taken from N.W. 3T. at 402-412; State's Exhibit 24.

{¶12} A cigarette was recovered by N.W.'s pillow that was the same kind that Cowan smoked. 2T. at 216, 332; 3T. at 436, 461-462; State's Exhibits 17,18,19.

Cowan testifies at trial

{¶13} Cowan testified that his son was born on November 22, 2021. 3T. at 449. It was undisputed that the only other male line relative in the home would have been the infant son of Cowan and C.K. Cowan further testified that he smokes Marlboro menthol cigarettes, the same brand found in N.W.'s bed on December 12, 2012. Id. at 456; 462.

{¶14} Cowan denied the incidents prior to December 12, 2021. Id. at 453. Cowan testified that on December 12, 2021 he and C.K. had argued about his box of trinkets from other relationships. 3T. at 454. He and a friend stayed up drinking and playing video games and cards after the others had gone to bed. At some point, Cowan went to the garage to smoke a cigarette. Id. at 456.

{¶15} Cowan explained that on that night, he went around the home making sure the doors and windows were locked. Id. at 457. He testified he was in N.W.'s bedroom making sure the furnace was blowing out heat to that part of the house. Id. Cowan further testified that he was fussing with his pants when C.K. came into the bedroom because he fluctuates in weight and his pants were too big. Id. at 458.

The jury's verdicts

{¶16} The jury found Cowan "Not Guilty" with respect to the events alleged to have occurred September 1, 2021 through December 11, 2021, Counts One, Two and Three.

{¶17} The jury found Cowan "Guilty" with respect to the events occurring on December 12, 2021, Count 4, Rape, a felony of the 1st degree; Count 5, Rape, a felony of the 1st degree; Count 6, Unlawful Sexual Conduct with a Minor, a felony of the 3rd degree; and Count 7, Gross Sexual Imposition, a felony of the 4th degree.

The sentence

{¶18} A sentencing hearing was held on April 13, 2023. The parties agreed that Counts 4, 5, 6, and 7 merged pursuant to R.C. 2941.25 and the state elected to proceed on Count 4, Rape. Sent. T., Apr 13, 2023 at 10-15. The trial judge sentenced Cowan to 10 to 15 years in prison with the Ohio Department of Rehabilitation and Correction.

Assignments of Error

{¶19} Cowan raises three Assignments of Error, "I. THE TRIAL COURT ERRORED [sic.] IN CONVICTIONS BECAUSE THE STATE'S CASE FAILED TO MEET THE SUFFICIENCY OF THE EVIDENCE TEST. FURTHERMORE, THE STATE'S CASE FAILED TO MEET THE MANIFEST WEIGHT OF THE EVIDENCE TEST.

"II. COWAN WAS DEPRIVED OF A FAIR TRIAL BECAUSE OF PROSECUTORIAL MISCONDUCT.

"III. JUROR MISCONDUCT DEPRIVED THE DEFENDANT OF A FAIR TRIAL BY A NEUTRAL TRIER OF FACT."

{¶20} In his First Assignment of Error, Cowan maintains that his convictions are against the manifest weight of the evidence. Cowan further argues that there is insufficient evidence to support his convictions.

Standard of Appellate Review - Sufficiency of the Evidence

{¶21} The Sixth Amendment provides, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury...." This right, in...