State v. BrownState v. Brown
WHITMORE, Judge.
{¶1} Defendant-Appellant, James Brown, appeals from his convictions and sentence in the Summit County Court of Common Pleas. This Court affirms in part and reverses in part.
I
{¶2} When she was five years old, A.W. told members of her family that Brown, her mother‘s boyfriend, had asked her to “lick certain areas of his private place.” A.W.‘s mother, Kimberly Truman, ultimately dismissed A.W.‘s accusation, believing it to be the result of A.W.‘s having seen Truman and Brown being intimate the week earlier. Truman had two children with Brown over the years, and he became a father figure to A.W. Truman and Brown never married, but they lived together and raised the children as a family.
{¶3} After A.W. turned fourteen years old, she began acting out. She smoked marijuana, drank alcohol, and saw her boyfriend over Truman‘s protests. In early April 2009, A.W. ran аway from home, prompting Truman to call the police. Truman decided to have a
{¶4} On May 21, 2009, a grand jury indicted Brown on the following counts: (1) two counts of rape, in violation of
{¶5} The trial court dismissed one count of sexual battery before trial, and the matter proceeded to a bench trial on the remaining counts. The trial court found Brown guilty of all the remaining counts and sentenced him to a total of twenty-four years in prison. The court also classified him as a Tier III sex offender/child victim offender.
{¶6} Brown now appеals from his convictions and raises nine assignments of error for our review. For ease of analysis, we rearrange several of the assignments of error.
Assignment of Error Number One
“THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO SUPPORT DAN BROWN‘S CONVICTIONS ON COUNTS I, II, III, IV, V, VI, IX, X, AND XI.”
{¶7} In his first, captioned assignment of error, Brown argues that his convictions for the crimes contained in counts one, two, three, four, five, six, nine, ten, and eleven are based on insufficient evidence. We disagree.
{¶8} In order to determine whether the evidence before the trial court was sufficient to sustain a conviction, this Court must review the evidence in a light most favorable to the prosecution. State v. Jenks (1991), 61 Ohio St.3d 259, 274. Furthermore:
“An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” Id. at paragraph two of the syllabus; see, also, State v. Thompkins (1997), 78 Ohio St.3d 380, 386.
“In essence, sufficiency is a test of adequacy.” Thompkins, 78 Ohio St.3d at 386.
{¶9} “No person shall engage in sexual conduct with another who is not the spouse of the offender *** when *** [t]he other person is less than thirteen years of age[.]”
{¶11} Finally, “[n]o person shall knowingly *** [b]y any means, *** [f]urnish or administer a controlled substance to a juvenile who is at least two years the offender‘s junior, when the offender knows the age of the juvenile or is reckless in that regard[.]”
{¶12} Brown does not set forth or specifically challenge any of the particular elements of any of the crimes for which he was convicted. He primarily argues that the State did not present sufficient evidence because A.W. testified that none of the accusations she made against Brown were true. A.W. recanted at some point before trial. The trial court called A.W. as a witness at the request of the State, and both the prosecutor and defеnse counsel cross-examined her. A.W. testified that she fabricated all of the allegations against Brown because she was angry at him and Truman for not allowing her to see her boyfriend and for threatening to send her to boarding school. Brown argues that, absent A.W.‘s testimony that Brown sexually abused her, his convictions all rested on insufficient, circumstantial evidence.
{¶14} Despite A.W.‘s recantation, the State was permitted to rely upon the statements she made to the police and the social worker at the CARE Center. See, e.g., State v. Major, 9th Dist. No. 21662, 2004-Ohio-1423 (affirming defendant‘s rape and gross sexual imposition convictions based on minor victim‘s prior statements where victim later recanted). A conviction is not based on insufficient evidence simply because the witness recants before the trial. See, e.g., State v. Lungaro (Feb. 16, 2000), 9th Dist. No. 2951-M, at *2-3. Rather, the victim‘s recantation is an issue of credibility. Id. at *3 (“This case was decided upon the credibility of the witnesses and the finder of fact was free to believe [the witnesses‘] original statements to the police.“). Because Brown‘s assignment of error challenges sufficiency and not manifest weight, this Court need not assess A.W.‘s credibility as a victim. State v. Porter, 9th Dist. No. 24996, 2010-Ohio-3980, at ¶9 (“[A] sufficiency challenge tests the State‘s production of evidence, not the persuasiveness of the evidence produced.“).
{¶15} Brown did not object to the introduction of any of A.W.‘s previous statements when the State introduced them during her testimony. Nor did he object when the State moved
{¶16} J.S., one of A.W.‘s friends, testified that Brown would pull up the shirts of A.W. and her friends between their breasts when they were at A.W.‘s house and that Brown made “inappropriate comments” about A.W.‘s body. S.M., another friend of A.W., testified that she saw Brown pinch A.W.‘s breasts and “mess with her shirt” several times. Rachel Truman, A.W.‘s aunt, testified that A.W. told her that several incidents involving oral sex occurred between her and Brown at the family‘s cabin, at A.W.‘s home, and in the family‘s car. A.W. made similar disclosures to her grandmother, who also testified. Christopher Smith, a forensic scientist for the Bureau of Criminal Identification and Investigation (“BCI“), testified that he tested several samples taken from A.W.‘s family‘s Dodge Durango during the course of the police investigation and that one of the samples from the driver‘s side center console tested positive for semen. Stacy Violi, another BCI forensic scientist, testified that the semen was consistent with Brown‘s DNA sample such that Brown could not be eliminated as its source.
{¶17} Viewing the evidence in a light most favorable to the State, we cannot conclude that the trial court erred by convicting Brown of rape, sexual battery, and corrupting a minor with drugs. A.W.‘s pre-recantation statements support Brown‘s convictions for rape, sexual battery, and corrupting another with drugs. And, while largely circumstantial in nature, other evidence in the record, such as the presence of Brown‘s semen in the family‘s Dodge Durango, corroborated A.W.‘s accusations. See Jenks, 61 Ohio St.3d at paragraph one of the syllabus (“Circumstantial evidence and direct evidence inherently possess the same probative value[.]“). To the extent Brown argues that A.W.‘s prior statements were inadmissible hearsay, he did not object to them
{¶18} Brown‘s assignment of error also includes a brief argument that his conviction for corrupting one of A.W.‘s friends with drugs, as contained in count eight of his indictment, is based on insufficient evidence. Apart from not addressing аny of the specific elements of that crime,
Assignment of Error Number Two
“THE TRIAL COURT ERRED BY ADMITTING THE COMPUTER EVIDENCE AND THEN RELYING ON THAT EVIDENCE TO SUPPORT ITS GUILTY VERDICT.”
{¶19} In his second assignment of error, Brown argues that the trial court abused its discretion when it admitted evidence concerning searches and images found on the computer in A.W.‘s home. Specifically, Brown argues that the evidence was irrelevant, highly prejudicial, and constituted improper “other acts” evidence.
{¶21} The trial court here admitted evidence that the computer in A.W.‘s home contained searches for a variety of pornographic websites, mainly involving teenagers, in its search history and similar pornographic images in its temporary internet files. All of the websites and images were legal, but the State introduced them to imply that Brown was sexually attracted to teenage girls and used A.W. to act upon his attraction. Brown argues that the court abused its discretion by admitting the evidence taken from the computer because: (1) the State‘s expert could not say that Brown was the one who actually searched for or viewed the websites or images; (2) the State‘s expert could not say how long websites were viewed or if any of the images were pop-ups, which the user had not deliberately sought out; and (3) even if Brown had viewed the pornography, his doing sо would have no bearing on any crimes committed against A.W.
{¶22} Even assuming that the trial court erred by permitting the State to introduce the foregoing evidence, Brown cannot demonstrate prejudice as a result of its admission. Truman testified on Brown‘s behalf, but admitted that she told the police she had once caught Brown masturbating to pornography on the family‘s computer. Thus, even apart from the State‘s expert, there was evidence in the record with regard to Brown viewing pornography on the family‘s
Assignment of Error Number Three
“THE TRIAL COURT ERRED BY DENYING THE DEFENSE MOTION FOR TIME TO HAVE THEIR OWN EXPERT EXAMINE THE COMPUTER HARD DRIVE AND REPORTS CREATED BY THE STATE‘S EXPERT.”
{¶23} In his third assignment of error, Brown argues that the trial court erred by refusing to grant him a continuance for the purpose of obtaining an expert and having the expert examine the computer at issue in this matter. We disagree.
{¶24} The decision to grant or deny a litigant a continuance for the purpose of obtaining an expert is a discretionary one. State v. Jackson, 9th Dist. No. 24650, 2009-Ohio-4863, at ¶9. As such, this Court reviews a trial court‘s decision to grant or deny a continuance for an abuse of discretion. Harrold v. Collier, 9th Dist. No. 02CA0005, 2002-Ohio-3864, at ¶18-19; Christian v. Johnson, 9th Dist. No. 24327, 2009-Ohio-3863, at ¶11-13. An abuse of discretion means that the trial сourt was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore, 5 Ohio St.3d at 219.
“In evaluating a motion for a continuance, a court should note, inter alia: the length of the delay requested; whether other continuances have been requested and received; the inconvenience to litigants, witnesses, opposing counsel and the court; whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived; whether the defendant contributed to the circumstance which gives rise to the request for a continuance; and other relevant
factors, depending on the unique facts of each case.” State v. Unger (1981), 67 Ohio St.2d 65, 67-68.
The foregoing factors essentially constitute “a balancing test in which any potential prejudice to the moving party is to be weighed against the trial court‘s right to contrоl its docket and the public interest in the timely and efficient dispatch of justice.” Vaughan v. Vaughan, 9th Dist. No. 10CA0014-M, 2010-Ohio-5928, at ¶9, citing Unger, 67 Ohio St.2d at 67.
{¶25} The latest possible date that Brown became aware that the State intended to introduce evidence it obtained from the computer in A.W.‘s home was September 30, 2009. On that day, the State filed a motion to admit other acts evidence and listed the “teen pornographic websites” searched for on the computer as one of the items it sought to have admitted. On January 14, 2010, the court issued a judgment entry, granting the State‘s motion to admit the content it discovered on the computer. On January 19, 2010, the trial commenced. The second day of trial, the State indicated that Richard Warner, a special agent for BCI, would be testifying about the items he found on the сomputer and would have his report ready by “this afternoon, if not [the next] afternoon.” Defense counsel only asked for an opportunity to review Warner‘s report before he testified. The trial court indicated that defense counsel would have that opportunity.
{¶26} Later the same day, defense counsel received Warner‘s report. Defense counsel then informed the court that they would like the opportunity to obtain an expert “to interpret some of this stuff.” When the trial court pressed defense counsel to articulate the reason why the defense might need their own expert, defense counsel said, “[w]ell, that‘s why we need an expert so maybe he can tell us what he can help us with.” The court held the oral motion for a continuance in abeyance until it heard Warner‘s testimony, but ultimately denied the motion.
{¶28} In light of all the foregoing, we cannot conclude that the trial court abused its discretion by denying Brown‘s motion for additional time to seek an expert. Brown waited until the middle of trial to request a continuance, despite being aware of at least some of the computer evidence the State sought to introduce. Thе computer at issue was available to him throughout the discovery process, and he could have obtained an expert at any point during that time. It was reasonable for the court to refuse to delay the trial given that Brown had the opportunity to obtain an expert before the trial even began. See Unger, 67 Ohio St.2d at 67-68. Furthermore, the evidence of the pornographic content itself was in no way a critical portion of the State‘s case. See Vaughan at ¶9 (instructing a court to consider the prejudice to the defendant in granting or denying a continuance). The State‘s case depended upon A.W.‘s accusations, which were corroborated by other evidence. Brown‘s argument that the court abused its discretion by denying him a continuаnce lacks merit. As such, his third assignment of error is overruled.
“MR. BROWN WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.”
{¶29} In his fourth assignment of error, Brown argues that both of his trial counsel were ineffective and prejudiced his trial because they failed to object to the admission of the DVD and medical records from the CARE Center and the written statement that A.W. completed for the police. We disagree.
{¶30} To prove an ineffective assistance claim, Brown must show two things: (1) that counsel‘s performance was deficient to the extent that “counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and (2) that “the deficient performance prejudiced the defense.” Strickland v. Washington (1984), 466 U.S. 668, 687. To demonstrate prejudice, Brown must prove that “there exists a reasonable probability that, werе it not for counsel‘s errors, the result of the trial would have been different.” State v. Bradley (1989), 42 Ohio St.3d 136, paragraph three of the syllabus. “An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Strickland, 466 U.S. at 691. Furthermore, this Court need not address both Strickland prongs if an appellant fails to prove either one. State v. Ray, 9th Dist. No. 22459, 2005-Ohio-4941, at ¶10.
CARE Center DVD & Medical Records
{¶31} Brown argues that his counsel performed deficiently because they failed to object to the admission of the DVD recording of the statements A.W. made during her interview at the CARE Center and the medical records documenting her visit at the CARE Center. He argues that the foregoing exhibits were inadmissible hearsay because the statements contained therein were not statements made for purposes of medical diagnosis or treatment under
{¶32} Regardless of a declarant‘s availability, statements that would otherwise be hearsay are admissible if the statements were “made for purposes of medical diagnosis or treatment and describ[e] medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.”
{¶33} The only reason Brown argues that A.W.‘s statements were not made for the purpose of medical diagnosis or treatment is that A.W. later recanted. Yet, the fact that a child-victim recants before trial is not a per se bar to the admission of that child‘s statements under
{¶35} Brown also argues that his counsel should have objected to the exhibits from the CARE Center on the basis that they were not business records under
Police Statement
{¶36} Brown also argues that his trial counsel were ineffective because they failed to object to the admission of the written statement A.W. completed for the police. A.W.‘s written statement mirrored the information that she gave at the CARE Center. The statement, therefore, was surplusage in that the record already contained the same information. Once again, Brown has not proven that, but for the admission of A.W.‘s written statement, the result of his trial would have been different. See id. Brown‘s fourth assignment of error is overruled.
Assignment of Error Number Seven
“THE TRIAL COURT ERRED WHEN IT FAILED TO DISMISS COUNT VIII.”
{¶37} In his seventh assignment of error, Brown argues that the trial court erred by refusing to grant his
{¶38} Brown‘s argument is essentially a sufficiency challenge with regard to the State‘s failure to establish venue as to count eight. See State v. Tayse, 9th Dist. No. 23978, 2009-Ohio-1209, at ¶34. We incorporate the standard of review set forth in Brown‘s first assignment of error.
{¶39} Count eight of Brown‘s indictment charged him with providing marijuana to one of A.W.‘s friends, J.S., who was a minor at the time. Specifically, Brown was charged with
“When an offender, as part of a course of criminal conduct, сommits offenses in different jurisdictions, the offender may be tried for all of those offenses in any jurisdiction in which one of those offenses or any element of one of those offenses occurred. Without limitation on the evidence that may be used to establish the course of criminal conduct, any of the following is prima-facie evidence of a course of criminal conduct:
“(1) The offenses involved the same victim, or victims of the same type or from the same group.
“(2) The offenses were committed by the offender in the offender‘s same employment, or capacity, or relationship to another.
“(3) The offenses were committed as part of the same transaction or chain of events, or in furtherance of the sаme purpose or objective.
“***
“(5) The offenses involved the same or a similar modus operandi.”
”
{¶40} Brown‘s sole argument is that the trial court should have dismissed count eight because it occurred in another county. The fact that conduct occurred in another county, however, is not a dispositive one because
Assignment of Error Number Eight
“THE JUDGE ERRED BY RELYING ON HEARSAY TO MAKE ITS JUDGMENT.”
Assignment of Error Number Nine
“THE JUDGE ERRED BY RELYING ON FACTS NOT IN THE RECORD.”
{¶41} In his eighth assignment of error, Brown argues that the trial court erred when it relied upon hearsay statements to convict him. In his ninth assignment of error, Brown argues that the trial court convicted him based, in part, upon misstated facts that were not a part of the record. As support for both of the foregoing assignments of error, Brown relies upon a “judgment entry” that the court filed on February 25, 2010, three days after it issued Brown‘s final judgment. In its February 25th entry, the court explained its reasons for finding Brown guilty of the offenses upon which he went to trial. Presumably, the court filed its entry in response to a “motion for findings of facts and conclusions of law” that defense counsel filed on January 27, 2010, two days after the conclusion of trial.
{¶42} The “judgment entry” that the trial court issued on February 25, 2010, is a nullity. The court issued Brown‘s final judgment entry on February 22, 2010. The Ohio Rules of Criminal Procedure do not contain a mechanism whereby a trial court may journalize findings of fact and conclusions of law in a bench trial after the court has issued its final judgment. Indeed,
Assignment of Error Number Five
“THE TRIAL COURT ERRED BY FAILING TO COMPLY WITH CRIMINAL RULE 32(A).”
{¶43} In his fifth assignment of error, Brown argues that the trial court erred by failing to afford him his right of allocution and that the court‘s error requires a resentencing. We disagree.
{¶44} Pursuant to
{¶45} Brown‘s sentencing hearing took place on February 11, 2010. The trial court permitted Brown‘s counsel an opportunity to speak on Brown‘s behalf. The court listened to Brown‘s counsel‘s statement and then set forth Brown‘s tier classification and the terms of his sentence. Brown‘s counsel then notified the trial judge that she had not given Brown the chance to make a statement on his own behalf. The trial judge acknowledged her mistake and gave
{¶46} The trial judge acknowledged that she should have allowed Brown to speak before she set forth the terms of his sentence. Brown argues that the court‘s failure to do so constitutes a violation of
“THE TRIAL COURT ERRED BY FAILING TO MERGE COUNTS I AND III, II AND IV, [AND] IX AND X.”
{¶47} In his sixth assignment of error, Brown argues that the trial court erred by failing to merge several of his offenses as allied offenses of similar import. Specifically, he argues that the offenses had to be merged because they were based on the same conduct.
{¶48} The record reflects that Brown did not object to his sentence in the court below. The Ohio Supreme Court has held, however, that a trial court commits plain error when it imposes multiple sentences for allied offenses of similar import. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, at ¶31. Thus, we turn to the convictions at issue.
{¶49} Recently, the Ohio Supreme Court reevaluated its allied offense jurisprudence and overruled its decision in State v. Rance (1999), 85 Ohio St.3d 632. State v. Johnson, Slip Opinion No. 2010-Ohio-6314. Johnson stemmed from a conflict between the First and Fifth Districts with regard to the issue of whether the crimes of felony murder and child endangering must merge when child endangering also serves as the predicate offense for the felony murder charge. Id. at ¶4-5, citing State v. Johnson, 1st Dist. Nos. C-080156 & C-080158, 2009-Ohio-2568 (concluding offenses were not allied because the legislature intended for the offenses to protect distinct societal interests) and State v. Mills, 5th Dist. No. 2007-AP-07-0039, 2009-Ohio-1849 (comparing elements in the abstract and concluding offenses were allied). In answering the certified question, the Court recognized the difficulty in applying its allied offense law, abandoned its current approach, and fashioned a new, conduct-based approach. In particular, the Court embraced
{¶50} Brown argues that his rape and sexual battery convictions are allied offenses of similar import because the crimes “cover[ed] the same conduct.” Brown argues that the trial court erred by failing to merge count one (rape) with count three (sexual battery), count two (rape) with count four (sexual battery), and count nine (rape) with count ten (sexual battery). The issue under the particular facts of this case, therefore, is whether, under
III
{¶51} Brown‘s first, second, third, fourth, fifth, seventh, eighth, and ninth assignments of error are overruled. As to Brown‘s sixth assignment of error, the judgment must be reversed
Judgment affirmed in part,
reversed in part,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed equally to both parties.
BETH WHITMORE
FOR THE COURT
CARR, J.
CONCURS
DISSENTS, SAYING:
{¶52} The State introduced evidence suggesting that Mr. Brown viewed pornographic websites that although legal, were consistent with teen pornography to demonstrate that he was the type of рerson who would commit the offense of which he was accused. In other words, if Mr. Brown was the type of person who would view a pornographic website with teen-like images, then he must be the type of person who would sexually assault a teenage girl. The State did not establish that this evidence was admissible for any of the reasons permitted under
{¶53} I respectfully disagree with the conclusion that the admission was harmless. It is true that there was testimony that Ms. Truman saw Mr. Brown masturbating to pornography on the family‘s computer, however, that testimony cannot be equated with evidence that Mr. Brown viewed websites consistent with teenage pornography. Knowledge that a person might view legal pornography containing images of mature women is fundamеntally different than the more inflammatory evidence that one is viewing images consistent with teenage pornography. While many adults would not think ill of a person who generally views pornography, most would think that one crosses a moral boundary when an adult views pornographic images of girls. In the face of conflicting evidence where the victim has recanted that the sexual assaults ever took place, it is precisely this type of evidence of the accused‘s bad character that is designed to tip the scales toward a guilty verdict. Furthermore, in light of the trial court‘s judgment entry, it is clear that this evidence was relied upon by the court. Thus, I cannot conclude that there was no reasonable possibility that the admission of the evidence may have contributed to Mr. Brown‘s conviction. See State v. Rahman (1986), 23 Ohio St.3d 146, 151, quoting State v. Bayless (1976), 48 Ohio St.2d 73, 106, vacated in part on other grounds by Bayless v. Ohio (1978), 438 U.S. 911.
ROBERT ALAN BRENNER, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.