STATE OF OHIO, Plаintiff-Appellee, v. MATTHEW BROWN, Defendant-Appellant.
Case No. 18CA3643
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY
RELEASED: 12/28/2018
[Cite as State v. Brown, 2018-Ohio-5431.]
Harsha, J.
DECISION AND JUDGMENT ENTRY
Justin C. Haskamp, Mason, Ohio, for appellant.
Matthew S. Schmidt, Ross County Prosecuting Attorney, and Pamela C. Wells, Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio, for appellee.
Harsha, J.
{¶1} After a jury convicted Matthew A. Brown of aggravated robbery, the trial court sentenced him to six years in prison and other sanctions. Brown asserts that his conviction was against the manifest weight of the evidence because there was no credible evidence identifying him as one of the robbers, and he presented alibi testimony that hе was at home at the time of the robbery.
{¶2} However, the crime victim, Trevor Rayburn, identified the man who pointed a gun at him and robbed him as having orange-brown or reddish facial hair, which matches the color of Brown’s beard and mustache. A convicted co-defendant testified that he had planned the robbery with Brown, who stole Rayburn’s money and split it with him the next day. Facebook messages between the co-defendant and Brown before and after the robbery were consistent with the co-defendant’s testimony. One of Brown’s friends testified that the next day after the robbery, Brown admitted to him that he had “robbed a guy” in Chillicothe; shortly thereafter, the friend observed
{¶3} Next Brown contends that the trial court’s instruction on aggravated robbery, which he did not object to, constituted plain error. Brown argues that there was inadequate evidence that the robber used a deadly weapon during the crime. But Rayburn testified that the robber pointed a black gun, which Rayburn believed was real because of the robber’s threats to shoot him. Because Rayburn’s observation and belief and Brown’s multiple threats to use the gun were evidence upon which a jury could reasonably find the use of a deadly weapon, the trial court was justified in giving the instruction. The trial court did not commit error, much less plain error, by instructing the jury on the charged offense of aggravated robbery.
{¶4} Finally, Brown claims that the trial court’s six-year prison sentence was excessive in light of the circumstances and mitigating factors. He argues that the trial court did not consider and assign sufficient weight to certain mitigating factors. But the trial court stated that it considered the seriousness and recidivism factors in
I. FACTS
{¶5} The Ross County Grand Jury returned an indictment charging Matthew Brown with one count of aggravated robbery. Brown entered a plea of not guilty and
{¶6} At the jury trial the victim Trevor Rayburn, a high school teacher from the Columbus, Ohio area, testified he has collected comic books for over 40 years. He indicated he met an individual named Jonathan Warren when he bought comic books from him at a flea market off of State Route 23 while traveling from Columbus to Portsmouth. Warren claimed that he had three graded copies of Amazing Fantasy No. 15, a 1962 comic book featuring the first appearance of Spider-Man. Stan Lee, who created Spider-Man and a myriad of other Marvel characters, purportedly signed one of the copies. Rayburn gаve Warren $1,000 as part of a negotiated $12,000 purchase price, and Warren sent him photos purporting to be of two of the three comic books he was selling to him.
{¶7} Rayburn testified that he arranged to meet Warren near the Game Stop in Chillicothe after Warren got off work. Rayburn took out $11,000 in $100 bills from his bank and sent a photo of it to Warren. Sometime after 10:30 p.m. on November 12, 2016, Rayburn parked his car next to Warren’s pickup truck in the Game Stop parking lot. Warren got out of the truck and into the baсk seat of Rayburn’s car, where he counted the money Rayburn gave him. Warren then walked towards his truck, which he said had the comic books, but he stopped to light a cigarette before grabbing a box.
{¶8} According to Rayburn he noticed a man with a dark hoodie and blue jeans standing nearby. Rayburn told Warren to get back into his car because he didn’t like the fact that the man was acting suspiciously. Warren grabbed the box and got in the back seat again, but the other man, who had his hoodie pulled tight around his face so
{¶9} Warren, who had been convicted of complicity to the same robbery, testified that he never had the comic books he represented he was selling, and that he sent Rayburn pictures of comic books he found online. Warren admitted that he and Brown planned to rob Rayburn when he came to Chillicothe to finalize the deal. Warren indicated he knew Brown through Gary White, a mutual friend. Warren testified thаt on the night of the robbery, he messaged Brown and the robbery proceeded as planned, with Brown stealing the money and running away. They referred to work on a plumbing job in their messages to hide their planned robbery. The next day, Gary White drove Warren to Brown’s house in Lucasville, where they split the stolen cash. Although Warren did not initially admit to the police that he and Brown had robbed Rayburn, he eventually did so while being detained on an unrelated arrest warrant.
{¶10} Gary White corroborated certain aspects оf Warren’s testimony, including that he drove Warren to Brown’s house to get money the day after the robbery. White also testified over objection that Warren admitted to arranging the robbery of a prospective comic book purchaser, that Brown put a gun to the man’s head, demanded
{¶11} James Michael Keaton, Brown’s longtime friend, testified that he and another friend had gone to Brown’s house on the night of the robbery at around midnight, but Brown’s girlfriend told them he wasn’t home. When they returned to Gary White’s house, Brown came over around 12:45 a.m. Later that morning Brown confided in Keaton that he had been in Chillicothe the evening before and that he had “robbed a guy.” Brown told Keaton that a game shop employee had set up a comic-books-for cash deal and that he had robbed them and took the money. Keaton, who worked at Walmart, later saw Brown and his family spending money on two shopping carts full of items.
{¶12} Brown also made a $450 cash payment on his home loan a few days after the robbery.
{¶13} Detective Twila Goble obtained a search warrant for Warren’s Facebook records, which confirmed messages between Warren and Brown leading up to the robbery and thereafter. Before the robbery Warren asked Brown whether they were still working, and Brown replied affirmatively. Then at 11:03 p.m. just prior to the robbery, Warren sent a thumbs-up image to Brown. The next morning after the robbery, Warren kept trying to contact Brown, until they agrеed to meet later that evening to talk about the “plumbing issue.” Although Brown initially told Det. Goble that he was at Gary White’s house around the time of the robbery at midnight, Goble later determined that Brown wasn’t at that house until around 1:00 a.m., which would have given him enough time to commit the robbery in Chillicothe and then drive home to Lucasville. Det. Goble
{¶14} Brown and his wife testified that he was at home during the time of the robbery. His wife (then girlfriend) stated she told Keaton that Brown wasn’t there that night because she did not see his van; they claimed Brown had parked it behind the barn to look for plumbing parts he needed for the job for Warren. Brown denied committing the robbery, claimed his Facebook messages with Warren were for a plumbing job he was going to do for him, and contended that he usually paid his bills with cash.
{¶15} The jury returned a verdict finding Brown guilty as charged of aggravated robbery. The trial court sentenced him to a six-year prison sentence and a mandatory period of post-release control, and ordered him to pay restitution to Rayburn.
II. ASSIGNMENTS OF ERROR
{¶16} Brown assigns the following errors for our review:
- APPELLANT’S CONVICTION FOR AGGRAVATED ROBBERY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF ARTICLE IV, SECTION 3 OF THE OHIO CONSTITUTION.
- THE TRIAL COURT’S INSTRUCTION FOR AGGRAVATED ROBBERY WAS PLAIN ERROR.
- THE TRIAL COURT’S SENTENCING WAS EXCESSIVE IN LIGHT OF THE CIRCUMSTANCES AND MITIGATING FACTORS.
III. LAW AND ANALYSIS
A. Manifest Weight of the Evidence
1. Standard of Review
{¶18} Generally, it is the role of the jury to detеrmine the weight and credibility of evidence. See State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, at ¶ 132. “ ‘A jury, sitting as the trier of fact, is free to believe all, part or none of the testimony of any witness who appears before it.’ ” State v. Reyes-Rosales, 4th Dist. Adams No. 15CA1010, 2016-Ohio-3338, ¶ 17, quoting State v. West, 4th Dist. Scioto No. 12CA3507, 2014-Ohio-1941, ¶ 23. We defer to the trier of fact on these evidentiary weight and credibility issues because it is in the best position to gauge the witnesses’
2. Analysis
{¶19} The jury convicted Brown of aggravated robbery in violation of
{¶20} Brown claims that the evidence identifying him as the robber is against the manifest weight of the evidence. He argues that Rayburn could not accurately identify the robber who pointed a gun at him and stole his money; Warren was a liar, who along with White had a motive to implicate Brown in the robbery to facilitate Warren’s purchase of a pickup truck from White; and he and his wife both testified that he was at home during the robbery.
{¶21} However, the state presented the victim, Trevor Rayburn, who identified the robber as having orange-brown or reddish facial hair, which matches the color of Brown’s beard and mustache. Jonathan Warren, a co-defendant convicted of the same aggravated robbery, testified that he had planned the robbery with Brown, who stole Rayburn’s money, and they split the money the next day. Facebook messages between Warren and Brown before and after the robbery were consistent with Warren’s testimony. Warren later told Gary White and the police that he and Brown had robbed a
{¶22} As the trier of fact, the jury was free to credit the state’s evidence; it did not clearly lose its way in concluding Brown was the robber. Brown’s aggravated robbery conviction is supported by the manifest weight of the evidence. We overrule his first assignment of error.
B. Jury Instruction
1. Standard of Review
{¶23} In his second assignment of error Brown contends that the trial cоurt committed plain error by instructing the jury on the charged offense of aggravated robbery. Our review of whether a jury instruction is warranted is de novo. State v. Depew, 4th Dist. Ross No. 00CA2562, 2002-Ohio-6158, ¶ 24 (“While a trial court has some discretion in the actual wording of an instruction, the issue of whether an instruction is required presents a question of law for de novo review”).
2. Analysis
{¶25} Brown concedes on appeal that he did not object to the trial court’s instruction on the offense of aggravated robbery, so he forfeited all but plain error on appеal. See State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 152; State v. Fouts, 4th Dist. Washington No. 15CA25, 2016-Ohio-1104, ¶ 58 (“Failure
{¶26} Brown claims plain error exists because there was inadequate evidence to prove the robber had a deadly weapon when he committed the robbery. But Rayburn testified the robber pointed a blаck gun at him during the theft of the money, and that he believed that the gun was real. The robber twice threatened to shoot Rayburn, which supports a finding that the gun was real and operable. See State v. D’Souza, 4th Dist. Scioto No. 13CA3586, 2014-Ohio-5650, ¶ 27-36 (state need not produce the weapon or prove that the defendant actually displayed it to prove that he possessed a deadly weapon; factfinder may infer defendant possessed a deadly weapon by the defendant’s words and conduct, e.g., threats to shoot or kill). This provided adеquate evidence of Brown’s use of deadly weapon, i.e., a gun, during the robbery for an instruction on the charged offense of aggravated robbery. We overrule Brown’s second assignment of error, as there is no error, plain or otherwise.
C. Excessive Sentence
1. Standard of Review
{¶27} In his third assignment of error Brown claims that the trial court’s six-year sentence for his aggravated-robbery conviction was excessive. When reviewing felony sentences appellate courts must apply the standard of review set forth in
(a) That the record does not support the sentencing court’s findings under division (B) or (D) of
section 2929.13 , division (B)(2)(e) or (C)(4) ofsection 2929.14 , or division (I) ofsection 2929.20 of the Revised Code , whichever, if any, is relevant;(b) That the sentence is otherwise contrary to law.
{¶28} Although
{¶29} The defendant bears the burden of establishing by clear and convincing evidence that the sentence is either contrary to law or not supported by the record. See, e.g., State v. Fisher, 4th Dist. Jackson No. 17CA5, 2018-Ohio-2718, ¶ 20, citing State v. O’Neill, 3d Dist. Allen No. 1-09-27, 2009-Ohio-6156, fn. 1. Clear and convincing evidence is more than a mere “preponderance of the evidence,” but allows less certainty than is required “beyond a reasonable doubt. It requires only “a firm belief
2. Analysis
{¶30} Brown claims that his six-year prison term is excessive. This six-year term is not contrary to law because his sentence was within the statutory range, the trial court stated that it considered the factors in
{¶31} Nor has Brown established by the requisite clear and convincing evidence that his six-year prison sentence was not supported by the record. At the sentencing hearing Rayburn stated that Brown robbed him a gunpoint, told him twice he was going to kill him, took $11,000 in cash from him, and left him in a parking lot, terrified and questioning whether he could continue to tell his high school students that there are still good people in the world. The state requested a seven-year prison term because although Brown had no prior felony convictions, he had used a gun during the crime.
{¶32} Brown’s counsel requested a minimum sentence, but noted that Brown still maintained his innocence. And Brown’s church pastor asked that he serve the least amount of prison time so that he could come back to his community and get on with his life. Finally, Brown’s wife stated that he was sorеly missed at home by her and their four children. Brown chose not to make a statement.
The Court has considered the recommendation of the State and defense counsel. I’ve heard the victim impact statement from Mr. Rayburn in this case, I’ve heard the statements made on behalf of the defendant, Mr. Brown, in mitigation. I’ve considered the purposes and principles of felony sentencing found in 2929.11, the seriousness and recidivism factors found in 2929.12, the guidance factors found in 2929.13. I have taken into consideration that Mr. Brown has no prior record. I’ve also taken into consideration, even though he’s not made a statement today, and he doesn’t have to. The pre-sentence investigation, which indicates Mr. Brown refuses to accept his responsibility and culpability for the offense.
I heard the evidence. I feel that the State proved its case beyond a reasonable doubt, twelve people that sat here, with no grudge against Mr. Brown, found the same thing.
I’ve also considered that a gun was used in this offense. Mr. Rayburn has testified at trial and very clearly today indicated in his victim impact statement that there was a gun and if my recollection is correct, it was like the Wild West out in that parking lot for a time. Mr. Rayburn tried to get away, the defendant was hanging onto the car with a gun pointed at him.
* * *
I’ve listened to Mr. Rayburn. It takes a special type of person to be a teacher. It takes a special type of person to deal with children, impressionable adolescents on a day to day basis and tell them that there are good people in the world. Now, Mr. Rayburn’s going to have difficulty doing that because you chose to slam a gun in his face.
I[] find that this defendant is not amenable to any combination of community control sanctions and that a prison sentence is appropriate. I’m going to impose a six year term of imprisonment in the, with the Ohio Department of Corrections.
{¶34} Brown essentially claims that the trial court failed to accord sufficient weight to or ignored the following mitigating circumstances: (1) in committing the offense, he acted under strong provocation, i.e., Warren took advantage of his dire financial situation to coerce him into committing the robbery,
{¶35} There is nothing in the record to support Brown’s claim that the trial court ignored these factors. The court expressly stated that it considered the seriousness and recidivism factors in
{¶36} At best Brown challenges the weight the trial court accorded the pertinent factors and its conclusion to impose a six-year prison sentence instead of a three, four, or five-year sentence. We have consistently rejected similar contentions. Simply because the court did not balance the factors in the manner appellant desires does not mean that the court failed to consider them, or that clear and convincing evidence shows that the court’s findings are not supported by the record. State v. Yost, 4th Dist. Meigs No. 17CA10, 2018-Ohio-2719, ¶ 20, State v. Graham, 4th Dist. Adams No. 17CA1046, 2018-Ohio-1277, ¶ 26, State v. Butcher, 4th Dist. Athens No. 15CA33, 2017-Ohio-1544, ¶ 87.
{¶37} Likewise, the trial court did not have to credit the “strong provocation” mitigating factor of
{¶38} Consequently, the trial court properly exercised its discretion in deciding to impose a prison sentence closer to the minimum three-year prison term than the maximum eleven-year prison term. Because Brown did not meet his burden to prove by clear and convincing evidence that his six-year prison term was either contrary to law or not supported by the record, we overrule his third assignment of error.
IV. CONCLUSION
{¶39} Brown’s aggravated-robbery conviction is supported by the manifest weight of the evidence, the trial court correctly instructed the jury on the charge, and his six-year prison term is not excessive. Having overruled Brown’s assignments of error, we affirm his conviction and sentence.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is tо allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, J. & McFarland, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.