State v. Brown
2020 Ohio 1650
Ohio Ct. App.2020Background
- On June 29, 2017 Toledo SWAT sergeants stopped Billy Brown’s pickup after observing equipment violations and a traffic maneuver; Brown’s adult son was a passenger.
- Sergeant Shaner ordered Brown from the truck; when Brown refused, Shaner opened the door, a struggle ensued, Shaner deployed a Taser twice, Brown climbed/fell back into the cab, then struggled as officers again removed and subdued him.
- Video and testimony show Brown’s leg made contact with Shaner during the extraction; Shaner testified the kick landed and that it “didn’t feel pleasant.” Brown was transported for medical evaluation; no contraband or warrants were found and his license was later confirmed valid.
- Brown was indicted and convicted by a jury of: failure to comply with a police order (misdemeanor), resisting arrest under R.C. 2921.33(B) (first-degree misdemeanor), and assault on a peace officer under R.C. 2903.13(A)(5) (fourth-degree felony).
- The court affirmed Brown’s assault conviction, vacated the resisting-arrest conviction for insufficient evidence of the statutory “physical harm” element under R.C. 2921.33(B), and partially vacated non-mandatory costs (supervision, confinement, appointed counsel), while affirming mandatory costs.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Brown) | Held |
|---|---|---|---|
| 1. Ineffective assistance for failure to request jury instruction on excessive/unnecessary force | State: No prejudice; instruction not required because resisting-arrest conviction valid | Brown: Counsel ineffective for not requesting instruction on affirmative defense of excessive force | Court: Moot — rendered moot by vacatur of resisting-arrest conviction |
| 2. Sufficiency/manifest weight of resisting-arrest conviction (R.C. 2921.33(B)) | State: Brown knew he would be arrested after orders and resisted; testimony showed Brown kicked Shaner causing contact | Brown: He did not know he was being arrested at the time; any contact was involuntary from Taser shock | Court: Reversed — insufficient evidence that Brown caused "physical harm" to officer; conviction under subsection (B) vacated; lesser subsection (A) not pursued by state |
| 3. Sufficiency/manifest weight of assault on peace officer (R.C. 2903.13(A)(5)) | State: Video and Shaner’s testimony support that Brown knowingly kicked the officer | Brown: Kick was involuntary flailing from Taser shock; recording altered | Court: Affirmed — jury could reasonably find Brown acted knowingly; assault conviction upheld |
| 4. Imposition of court costs and ability to pay | State: Certain costs (prosecution, R.C. 9.92(C), R.C. 2929.18(A)(4)) are mandatory | Brown: Trial court failed to comply with Crim.R. 43 and did not make findings on ability to pay non-mandatory costs | Court: Partially affirmed — mandatory costs affirmed; non-mandatory costs (supervision, confinement, appointed counsel) vacated for lack of clear record showing ability to pay |
Key Cases Cited
- State v. Thompkins, 678 N.E.2d 541 (Ohio 1997) (distinguishes sufficiency and manifest-weight review standards)
- State v. Jenks, 574 N.E.2d 492 (Ohio 1991) (sufficiency review requires viewing evidence most favorably to prosecution)
- State v. Darrah, 412 N.E.2d 1328 (Ohio 1980) (four elements establishing an arrest and requirement that arrested person understand they are under arrest)
- State v. Smith, 684 N.E.2d 668 (Ohio 1997) (standard for sufficiency review restated)
- State v. Lasker, 76 N.E.3d 372 (Ohio App. 2016) (insufficient evidence under R.C. 2921.33(B) where no evidence of officer injury)