State of Ohio v. Anthony Braswell
Court of Appeals No. L-16-1197
Trial Court No. CR0201601685
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
August 10, 2018
2018-Ohio-3208
DECISION AND JUDGMENT
Julia R. Bates, Lucas County Prosecuting Attorney, and Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.
Mollie B. Hojnicki-Mathieson, for appellant.
*****
OSOWIK, J.
{1} Following a jury trial, the Lucas County Court of Common Pleas convicted the defendant-appellant, Anthony Braswell, on a single count of burglary. On appeal, Braswell challenges the evidence against him and his prison sentence. He also claims that his trial counsel was ineffective. As set forth below, we find Braswell received a
Facts and Procedural History
{2} The following evidence was offered at trial. The accuser in this case, “S.L.,” is Braswell‘s former girlfriend. S.L.‘s relationship with Braswell ended in 2008 or 2009.
On Friday, March 25, 2016, S.L. was at her house, located at 902 Prospect Street, in Toledo, Ohio. S.L. shared the home with her boyfriend, and her boyfriend‘s son. S.L. had arranged to take the boy to her sister‘s for the night because she worked the next morning. Just before leaving for her sister‘s, S.L. received a phone call from her friend, A.G., who said she was on her way over and asked to spend the night. S.L. agreed and responded that she would be right back. The time was 11:00 p.m. S.L. locked the doors as she left.
{3} Around 11:05, as she was dropping off the boy for the night, S.L. received a phone call from A.G. who was, by then, parked outside of S.L.‘s house on Prospect. A.G. reported that she had just seen Braswell exit S.L.‘s home and that the front door was “kicked in.” A.G. recognized Braswell from having met him before. S.L. immediately returned home, to find that the doorframe and front door were busted and many items were missing, including an “Xbox” gaming system, three televisions and a laptop computer. S.L. also found an Xbox power cord on her front lawn.
{4} S.L. testified that Braswell returned to S.L.‘s house the next day, March 26, 2016, and attempted to gain entry through the back door. S.L. and A.G. heard glass break
{5} Waddell met with S.L. on Monday, March 28, 2016. Two days later, Braswell called S.L. and told her that his probation officer had contacted him and that there was a warrant out for his arrest. Braswell then continued to contact S.L. She testified that, “the first couple [of calls] were kind of [him] asking me not to go to court, not to put him in jail.” A couple of days later, Braswell “finally admitted” to breaking into her house. S.L. testified that Braswell “called me crying. He said, sorry, and [asked] why am I putting him in jail because I never did it before.” Braswell also told her that he and his current girlfriend had gotten into a fight, which caused him to be upset with S.L. because, in S.L.‘s own words, “he was upset at me because he would not have been with her if he was with me, so that was the reason he had broke into my house.” In all, Braswell called S.L. about 10 to 15 times.
{6} S.L.‘s grandmother, “F.F.,” listened to one of the calls. F.F. knew Braswell “very well” and was familiar with his voice. F.F. testified that, during the call, she heard Braswell “ask [S.L.] not to have him arrested * * * [and] he apologized three different
{7} A Lucas County Grand Jury indicted Braswell on April 13, 2016, for burglary, in violation of
First Assignment of Error: The evidence at appellant‘s trial was insufficient to support the conviction and appellant‘s conviction was against the manifest weight of the evidence.
Second Assignment of Error: Appellant was denied effective assistance of counsel as guaranteed by the United States and Ohio Constitutions.
Third Assignment of Error: The trial court erred when it imposed consecutive sentences.
{8} Sufficiency of the evidence is a legal standard that tests whether the evidence introduced at trial is legally sufficient to support a verdict. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). We examine the evidence in the light most favorable to the state and decide whether any rational trier of fact could have found that the state proved, beyond a reasonable doubt, all of the essential elements of the crime. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus; State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 78.
{9} Whether the evidence is legally sufficient to sustain a verdict is a question of law. Thompkins at 386. We will not disturb the verdict unless we determine that reasonable minds could not arrive at the conclusion reached by the trier of fact. State v. Treesh, 90 Ohio St.3d 460, 484, 739 N.E.2d 749 (2001); Jenks at 273.
{10} Braswell was charged and convicted of one count of burglary, in violation of
{11} Braswell argues that the state failed “to establish that it was [he] who trespassed at [S.L.‘s house] for the purpose of committing the criminal offense of theft.” Braswell complains that no evidence was presented that he entered S.L.‘s house “by force, stealth, or deception” or that he committed a theft offense while inside. Braswell points specifically to a lack of any physical evidence, like fingerprints and shoeprints
{12} Direct evidence of a fact is not required; a conviction may rest on circumstantial evidence. State v. Jackson, 57 Ohio St.3d 29, 38, 565 N.E.2d 549 (1991). Here, S.L. testified that she did not give Braswell permission to enter her home and that, when she left at 11:00 p.m., her home was in order and locked. Moreover, A.G.‘s testimony, if believed, established that Braswell gained access to the interior of the property inasmuch as she observed him exiting it, at 11:05 p.m. By that time, S.L.‘s door and doorframe had been damaged. There is also evidence in the record, by way of S.L. and corroborated by F.F., that Braswell admitted to the crime. We find that a jury could reasonably conclude from these facts that Braswell gained entry to the home by force and that he did so for the purpose of committing a theft offense.
{13} The remainder of Braswell‘s arguments pertain to the credibility of witnesses, which we address in response to his argument that his conviction is against the manifest weight of the evidence. In determining whether a conviction is based on sufficient evidence, an appellate court does not assess whether the evidence is to be believed, but whether, if believed, the evidence against a defendant would support a conviction. See Jenks, paragraph two of the syllabus; Yarbrough at ¶ 79 (Noting that courts do not evaluate witness credibility when reviewing a sufficiency of the evidence claim). In sum, construing this evidence and the reasonable inferences therefrom in a light most favorable to the state, a rational trier of facts could find all of the essential
{14} While sufficiency of the evidence examines whether the evidence is legally sufficient to support the verdict as a matter of law, the criminal manifest weight of the evidence standard addresses the evidence‘s effect of inducing belief. State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins at 386. “When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees with the fact finder‘s resolution of the conflicting testimony.” Wilson at ¶ 25, quoting Thompkins at 387. In determining whether a conviction is against the manifest weight of the evidence, the appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses and determine whether, in resolving any conflicts in the evidence, the jury clearly lost its way and thereby created such a manifest miscarriage of justice that the conviction must be reversed and a new trial must be ordered. Thompkins at 387, citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{15} Braswell argues that S.L.‘s testimony was not credible. Initially, S.L. testified that she called 911 immediately to report the burglary, but she did not dispute 911 records that showed no such call by her that night. S.L. explained that she thought she had called 911 right away, but she could not be sure because, as she said, “this is the third time that he has done this. So at this point it‘s not * * * like I‘m surprised any
{16} Braswell also argues that it would have been “implausible” if not “impossible” to have effectuated the theft according to the state‘s timeline. He cites the state‘s evidence—that S.L. left her home at 11:00 p.m. and A.G. arrived at 11:05 p.m. Braswell argues that it would have been “impossible for [him] to break the locking mechanism on the front door, force his entry into the home, remove [the stolen items and then] make one needless trip back into the home—all within five minutes. While we agree that the state presented a narrow time line, it was not an impossible one. Moreover, S.L.‘s testimony suggests that the timing of Braswell‘s theft was not happenstance. According to her, Braswell has “let me know he watches me. He‘s seen me coming out of the house with my boyfriend, his child, and he‘s let me know that.” The jury may have concluded that Braswell waited for an opportunity to break in, knowing that she had stepped out. In any event, “it is inappropriate for a reviewing court to interfere with factual findings of the trier of fact * * * unless the reviewing court finds that a reasonable juror could not find the testimony of the witness to be credible.” State v. Brown, 10th Dist. Franklin No. 02AP-11, 2002-Ohio-5345, ¶ 10, quoting State v. Long, 10th Dist. Franklin No. 96APA04-511, 1997 Ohio App. LEXIS 416.
{17} Our review reveals that ample evidence supports Braswell‘s conviction. Indeed, Braswell confessed to the crime, as established by S.L., and corroborated by F.F. The record also reveals a possible motive for his conduct. According to S.L., Braswell was upset with her that the two were no longer “together.” In addition, A.G. provided eyewitness testimony that placed Braswell at the scene of the crime within minutes of its occurrence. “Even though some discrepancies do exist, eyewitness identification testimony alone is sufficient to support a conviction so long as a reasonable juror could find the eyewitness testimony to be credible.” State v. Jordan, 10th Dist. Franklin No. 04AP-827, 2005-Ohio-3790, ¶ 14. “The reliability of properly admitted eyewitness identification, like the credibility of the other parts of the prosecution‘s case is a matter for the jury.” State v. Roper, 9th Dist. Summit No. 20836, 2002-Ohio-7321, ¶ 55, quoting Foster v. California, 394 U.S. 440, 443, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969). Having reviewed the entire record, weighed the evidence and all reasonable inferences, and considered witness credibility, we cannot find that this is one of the “exceptional cases” that “weighs heavily against conviction.” Thompkins at 387. Braswell‘s conviction is also not against the manifest weight of the evidence, and his first assignment of error is not well-taken.
In his second assignment of error, Braswell asserts that he was denied his constitutional right to effective counsel. “The Sixth Amendment, applicable to the States
{18} Braswell alleges incidents of ineffective assistance of counsel at every phase of his trial. We address his arguments below.
{19} Unprepared for trial. Braswell cites counsel‘s request to continue the trial date as evidence that she was not prepared to try his case. Counsel made one such request to move the trial date from Monday, June 27, 2016, so that she could confer
{20} A request for additional time for the purpose of preparing for trial does not amount to ineffective assistance of counsel. State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 59 (“Indeed, counsel would have provided ineffective assistance if he knew that he was unprepared and failed to request a continuance.“). Also, to the extent that the trial court was displeased with Braswell‘s lawyer, we are satisfied with its assurance to Braswell that he would “be treated as if none of it [had] happened.” We reject Braswell‘s argument that his counsel was either “unprofessional” or unprepared.
{21} Ineffective voir dire. Next, Braswell argues that counsel made “prejudicial comments harmful to her own client to the jury.” Braswell cites counsel‘s (1) acknowledgment to the jury that she, herself, felt “nervous;” (2) providing the jury with a “summary of her personal life;” (3) telling the jury that the crime of burglary “is really scary. Very scary. I know I‘ve put myself in that position and thought how
{22} Upon our review, we found that counsel offered a few details about her own life, because she had to ask “really personal questions about you guys” which made her “nervous.” Counsel‘s attempt to humanize herself and to explain why she had to inquire into the jury‘s personal lives is neither unprofessional nor ineffective. In addition, while counsel acknowledged that burglary would be “scary” to experience, she in no way intimated that her client was responsible for committing the crime. We find that counsel‘s statements amounted to nothing more than an attempt to build a rapport with the jury and did not amount to ineffective assistance of counsel. See, e.g., State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 225 (“Counsel‘s candid acknowledgement that a horrible murder was committed on a defenseless victim helped to build rapport with the jury.“).
{23} Also, while counsel did say that she “sometimes [doesn‘t] pay attention to every word” of jury instructions, the context surrounding that comment suggests that she intended to emphasize, not diminish, the importance of those instructions and the jury‘s role.1 While counsel could have made the same points, without professing that she
{24} We also reject Braswell‘s argument that trial counsel was ineffective for failing to exercise a peremptory challenge as to juror No. 11, merely because the juror was a sheriff‘s deputy. “Decisions on the exercise of peremptory challenges are a part of trial strategy.” State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-544, 25 N.E.3d 1023, ¶ 225, citing State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 99. Trial counsel, who observe jurors firsthand, are in a much better position than a reviewing court to determine whether a prospective juror should be peremptorily challenged. Id.
{25} Failure to provide discovery. Braswell complains that his counsel failed to provide the state with overhead photographs of S.L.‘s home. He concedes, though, that the court allowed their use. Braswell does not explain how counsel‘s discovery violation resulted in ineffective assistance, much less how he was prejudiced by it. Braswell‘s complaint, even if true, is not evidence of ineffective assistance of counsel.
{27} Ineffective cross-examination and impeachment of A.R.: Braswell argues that his counsel elicited prejudicial testimony while cross-examining A.R. A.R. testified that she thought Braswell was “violent” and later, testified that she did not want to divulge what kind of car she drove out of fear that Braswell would track her down. We reviewed the passages cited by Braswell. It was not foreseeable, based upon the questions asked by counsel, that A.R. would offer such testimony. And while counsel could, and probably should, have objected, on the basis that her answers were non-responsive, “the decision not to request a limiting instruction is sometimes a tactical one.” State v. Schaim, 65 Ohio St.3d 51, 61, fn. 9, 600 N.E.2d 661 (1992). “A competent trial attorney may well eschew objecting * * * in order to minimize jury attention to the damaging material.” (Quotations omitted.) State v. Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, 873 N.E.2d 828, ¶ 90.
{28} Braswell also faults counsel for failing to impeach A.R. over “the inconsistency between the police reports and testimony,” but he fails to identify the
{29} Braswell lodges similar arguments with regard to his counsel‘s examination of S.L., the accuser in this case. First, he complains that counsel failed to object to two instances of hearsay evidence. In one, he that argues counsel should have objected to S.L.‘s response when asked how she learned of the burglary. S.L. testified, “[A.G.] called me and told me she [had] seen Anthony [Braswell].”
{30} Hearsay is “a statement, other than one made by the declarant while testifying * * * offered in evidence to prove the truth of the matter asserted.”
{31} Braswell also argues that it was hearsay, and thus objectionable, when S.L. testified that “[h]e had his mother call me and try to pay me for my things to not send him to jail.” Again, we find that the statement was not hearsay because it was not offered for its truth, i.e., that Braswell‘s mother actually offered to pay S.L., but rather to show that Braswell was desperate to avoid having S.L. talk to the police, which included enlisting the help of his mother. In any event, given that Braswell failed to identify how the alleged hearsay statements caused him actual prejudice, we cannot find that the result of the proceedings would have been different had counsel objected to either. See State v. Chandler, 10th Dist. Franklin No. 10AP-972, 2011-Ohio-3485, ¶ 16 (No prejudice from admission of officer‘s alleged hearsay testimony, where eyewitness testimony overwhelmingly linked defendant to crimes).
{32} Next, Braswell argues that counsel was ineffective while cross-examining S.L. because she “opened the door” to Braswell‘s prior bad acts. During cross-examination, counsel elicited testimony from S.L. that Braswell had broken into her
{33} Failure to move for a mistrial: Braswell complains that his counsel should have moved for a mistrial after A.G. testified that Braswell spent five years in prison and after S.L. referred to the fact that Braswell had a probation officer. He concedes, however, that the trial court sustained both of counsel‘s objections and then instructed the jury to disregard both statements. A defendant alleging ineffective assistance of counsel because his attorney failed to move for a mistrial must establish that the trial court probably would have or should have declared a mistrial. State v. Seiber, 56 Ohio St.3d 4, 12, 564 N.E.2d 408 (1990). Moreover, a mistrial should not be ordered in a
{34} Miscellaneous and cumulative errors: As evidence that his counsel was “too inexperienced” to try this case and/or that she was “unprepared,” Braswell complains (1) that the trial judge “had to assist counsel” and explain how to publish evidence to the jury and how to impeach a witness; (2) that she relied on her co-counsel to examine a witness; and (3) that counsel could not “figure out” how to use her power point presentation during closing arguments.
{35} In Ohio, a properly licensed attorney is presumed competent, and the defendant “bears the burden of proving that his trial counsel was ineffective. To carry this burden, [the defendant] must show that counsel made errors so serious that counsel failed to function as the ‘the counsel’ guaranteed by the Sixth Amendment.” State v. Hamblin, 37 Ohio St.3d 153, 155-156, 524 N.E.2d 476 (1988), citing Strickland. That counsel was assisted by her co-counsel and/or that the trial judge ensured that the parties complied with the rules of evidence hardly calls into question the competence of Braswell‘s lawyer. Also, the record establishes that counsel was able to give her previously-prepared closing argument, in full, despite a technical difficulty with the court‘s equipment. We see no evidence of ineffective representation by Braswell‘s counsel, much less evidence that, but for counsel‘s alleged mistakes, the result of the trial would have been different.
{36} Finally, Braswell argues that the cumulative impact of his counsel‘s deficient performance warrants reversal of his conviction and a new trial. Because we have found no conduct by trial counsel that rises to the level of drawing the outcome of the case into doubt, we cannot say that counsel‘s representation fell below an objective standard of reasonable representation. See Strickland, 466 U.S. at 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989). In this case, there was ample evidence of Braswell‘s guilt, as provided by the testimony of S.L., A.G., and F.F., and the alleged examples of ineffective assistance of counsel did not affect the outcome of the trial. Braswell‘s second assignment of error is not well-taken.
{37} In his final assignment of error, Braswell alleges that the trial court erred in ordering his sentences to be served consecutively. The court ordered that Braswell serve 48 months in prison as to his burglary conviction (the instant case) and an additional 12 months for violating the terms of his community control in case No. CR0201501446.
{38} Appellate courts review felony sentences under the standard set forth in
{39}
(4) If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section
2929.16 ,2929.17 , or2929.18 of the Revised Code, or was under post-release control for a prior offense.(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct. (c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender. (Emphasis added.)
{40} Thus, before ordering consecutive sentences, a trial court must find that (1) consecutive sentences are necessary to protect the public from future crime or to punish the offender; (2) that consecutive sentences are not disproportionate to the seriousness of the defendant‘s conduct and to the danger he poses to the public, and (3) one of the findings described in subsections (a), (b) or (c). In addition, “[i]n order to impose consecutive terms of imprisonment, a trial court is required to make the findings mandated by
Being necessary to fulfill the purposes of
R.C. 2929.11 and2929.14(C)(4) , consecutive sentence [sic] are necessary to protect the public from future crime or to punish the offender and are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public. The courts further finds the defendant was on community control; on post release control, the harm caused was great or unusual such that no single prison term is adequate, and the defendant‘s criminal history demonstrates that consecutive sentences are necessary to protect the public, therefore the sentence in this case is ordered to be served consecutively to the sentence imposed in case CR01501446 for the total period of incarceration of 60 months on both cases with credit for time served on both cases of 276 days.
{42} Based upon the above, the trial court made the requisite, initial findings under
{44} Because only one
{45} An appellate court may vacate or modify a felony sentence only if we determine by clear and convincing evidence that the record does not support the trial court‘s findings under relevant statutes or that the sentence is otherwise contrary to law. Id. Having found no such evidence and having found that the sentence is not contrary to law, we affirm the trial court‘s imposition of consecutive sentences. Braswell‘s third assignment of error is not well-taken.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Arlene Singer, J. ___________________________
JUDGE
Thomas J. Osowik, J. ___________________________
JUDGE
Christine E. Mayle, P.J. ___________________________
CONCUR. JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
Notes
Before you go back to deliberate, the Judge is going to give you those jury instructions. Listen very, very carefully to those instructions. They are very long. I know I hear them many, many times and sometimes don‘t pay attention to every word. It‘s very important that you listen to every word, and it will answer so many of your questions. Listen to the elements required for the burglary conviction and think about the testimony that was given as well. Treat this with the importance that you would treat a marriage proposal or choosing your baby‘s names. This is a very, very important civic duty, and I appreciate the fact that you all have appeared here today.