State v. BrakeallState v. Brakeall
Bryant Law Office, Anthony J. Baker, 21 North South Street, Wilmington, OH 45177, for defendant-appellant
O P I N I O N
POWELL, P.J.
{¶1} Defendant-appellant, Jesse R. Brakeall, appeals his conviction and sentence in the Fayette County Court of Common Pleas for felonious assault and murder, as well as the trial court‘s denial of his motion for a new trial. We affirm.
{¶2} In the early morning hours of December 23, 2007, Brakeall and two of his friends went to the Waffle House located off State Route 35 in Fayette County, Ohio.
{¶3} Upon seeing the confrontation, Ross Sykes, who was а regular customer of the Waffle House, came to the waitress’ defense, telling Brakeall and his friends they should wait to be served, just as he had. Brakeall and Sykes then exchanged words, culminating in Brakeall challenging Sykes to step outside. Sykes follоwed Brakeall outside to the parking lot. Sykes dodged Brakeall‘s first punch, but Brakeall‘s second punch landed on Sykes’ mouth, causing him to fall backward and strike his head on the pavement, thereby knocking him unconscious. Sykes later died from his injuries.
{¶4} In February 2008, Brakeall was indicted for felonious assault in violation of
{¶5} Brakeall now appeals his conviction and sentence, as well as the trial court‘s denial of his motion for a new trial, and assigns the following as error:
{¶6} Assignment of Error No. 1:
{¶7} “THE TRIAL COURT ERRED BY DENYING APPELLANT‘S MOTION FOR A NEW TRIAL.”
{¶9} A new trial may be granted on motion of a criminal defendant due to juror misconduct that materially affects the defendant‘s substantial rights.
{¶10} Attached to Brakeall‘s motion for a new trial was an affidavit from his defense counsel who averred that on June 27, 2008, the trial court informed him “that pursuant to information learned from a deputy, two jurors referred to extrinsic materials and/or evidence while deliberating [Brakeall‘s] verdict.” In a memorandum supporting the motion for a new trial, defense counsel represented that the extrinsic material to which the jurors had referred was a Black‘s Law Dictionary.
{¶11} On September 11, 2008, the trial court issued a judgment entry denying Brakeall‘s motion for a new trial. The trial court noted that Brаkeall‘s motion was filed in response to the trial court‘s informing defense counsel and the prosecutor “that a court employee had received information from a juror concerning the use of a law dictionary during jury deliberations.” The trial court overruled the motion for a new trial on the basis that under the “aliunde rule” contained in
{¶12}
{¶13} “Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury‘s deliberations or to the effect of anything upon that or any other juror‘s mind or emotions as influencing the juror to assеnt to or dissent from the verdict or indictment or concerning the juror‘s mental processes in connection therewith. A juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury‘s attention or whether any outside influence was improperly brought to bear on any juror, only after some outside evidence of that act or event has been presented. However, a juror may testify without the presentation of any outside evidence concerning any threat, any bribe, any attempted threat or bribe, or any improprieties of any officer of the court. A juror‘s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be prеcluded from testifying will not be received for these purposes.” (Emphasis added.)
{¶14}
{¶15} ”
{¶16} “***
{¶17} “In order to permit juror testimony to impeach the verdict, a foundation of
{¶18} The purposes of the aliunde rule are to (1) maintain the sanctity of the jury room and the deliberations therein, (2) ensure the finality of jury verdicts, and (3) protect jurors from being harassed by defeаted parties. See Schiebel, 55 Ohio St.3d at 75; and Hessler, 90 Ohio St.3d at 123.
{¶19} In this case, Brakeall failed to present evidence aliunde of the alleged juror misconduct and thus failed to lay the requisite foundation for the introduction of any testimony from a member of the jury regarding alleged juror misconduct.
{¶20} Specifically, the affidavit of Brakeall‘s defense counsel does not constitute
{¶21} Consequently, the trial court did not abuse its discretion by refusing to grant Brakeall a new trial on the grounds of juror misconduct, since Brakeall failed to present evidence aliunde of the alleged juror misconduct. Schiebel and Lewis. Also, the trial court did not abuse its discretion under the circumstances of this case by denying Brakeall‘s motion without holding an evidentiary hearing. Hessler, 90 Ohio St.3d at 124.
{¶22} Brakeall‘s first assignment of error is overruled.
{¶23} Assignment of Error No. 2:
{¶24} “THE TRIAL COURT VIOLATED APPELLANT‘S STATE CONSTITUTIONAL RIGHT TO A GRAND JURY INDICTMENT AND STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS WHERE APPELLANT‘S
{¶25} Brakeall argues that count two of the indictment charging him with murder failed to include an essential element of the crime, namely, the mens rea or culpable mental state fоr the offense. He contends that pursuant to
{¶26}
{¶27} “No person shall cause the death of another as a proximate result of the offender‘s committing or attempting to commit an offense of violence that is a felony of the first or second degree and that is nоt a violation of section 2903.03 [voluntary manslaughter] and 2903.04 [involuntary manslaughter] of the Revised Code.”
{¶28} “[T]he culpable mental state required to support a conviction under
{¶29} The “underlying felony offense of violence” for the murder charge in count two of the indictment was felonious assault, a felony of the second degree, and the
{¶30} Furthermore, contrary to what Brakeall contends, this is not an instance where the indictment failed to charge the mens rea element of the offenses for which Brakeall was indicted, cf. State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, syllabus, as limited by State v. Colon, 119 Ohio St.3d 204, 2008-Ohio-3749, ¶3-8, since count one of the indictment charging Brakeall with felonious assault alleged that he “knowingly” caused serious physical harm to the victim, and count two of the indictment charging Brakeall with murdеr specified that the murder charge arose from his committing or attempting to commit felonious assault.
{¶31} Consequently, Brakeall‘s second assignment of error is overruled.
{¶32} Assignment of Error No. 3:
{¶33} “THE TRIAL COURT VIOLATED APPELLANT‘S RIGHT TO DUE PROCESS AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION IN ARTICLE I, SECTION X OF THE OHIO CONSTITUTION BY ENTERING VERDICTS OF GUILTY, AS THE JURY‘S VERDICT WAS AGAINST THE MANIFES [sic] WEIGHT OF THE EVIDENCE.”
{¶34} Brakeall argues his convictions for felonious assault and murder werе contrary to the manifest weight of the evidence. We disagree.
{¶35} Brakeall admitted to punching Sykes in the mouth, which caused Sykes to fall back and strike his head on the pavement, causing his death. The evidence showed that Brakeall punсhed Sykes so hard that Brakeall split open his own hand, requiring
{¶36} However, a review of the evidence shows that there was ample evidence presented to support the jury‘s findings that Brakeall failed to prove his self-defense claim by a рreponderance of the evidence, see
{¶37} Furthermore, any inconsistencies in the testimony of three оf the Waffle House‘s employees who testified for the state were minor, and any inconsistency between the witnesses’ initial and subsequent statements were attributable largely to the fact that a power outage at the Waffle House on the night in question forced the witnesses to write their statements to police using flashlights for illumination. There is nothing in the record to show that the jury lost its way in resolving conflicts in the evidence or created such a manifest miscarriage of justice that a new trial must be ordered. State v. Bryant, Warren App. No. CA2007-02-024, 2008-Ohio-3078, ¶30.
{¶38} Therefore, Brakeall‘s third assignment of error is overruled.
{¶39} Judgment affirmed.
RINGLAND and HENDRICKSON, JJ., concur.