State v. BrownState v. Brown
For Plaintiff-Appellee: Atty. Paul J. Gains, Mahoning County Prosecutor; Atty. Ralph M. Rivera, Assistant Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503
For Defendant-Appellant: Milous Brown, Pro se, #603-569, Belmont Correctional Institution, P.O. Box 540, St. Clairsville, Ohio 43950
JUDGES: Hon. Cheryl L. Waite, Hon. Joseph J. Vukovich, Hon. Mary DeGenaro
OPINION AND JUDGMENT ENTRY
{¶1} On March 5, 2014, Appellant Milous Brown filed an application to reopen State v. Brown, 7th Dist. No. 11 MA 117, 2013-Ohio-5528, in which we affirmed Appellant‘s convictions on gross sexual imposition. Appellant was originally indicted for sexually oriented offenses against three different minor children. Charges included one count each of gross sexual imposition against Minor Child X, then five years old and Minor Child Y, then four years old, and one count of rape involving another child. Prior to trial the gross sexual imposition and rape counts were severed, to be tried separately. There are several details that emerged during Appellant‘s trial that are particularly relevant to Appellant‘s application for reopening and can be found in our Opinion in his underlying appeal.
{¶2} Child X and Child Y are half siblings. As a result of Appellant‘s actions, custody of Child X was permanently changed and immediately following the disclosure of Appellant‘s actions this child was evaluated by medical professionals and began a course of treatment and counselling that was ongoing at the time of trial. The social worker who was assigned to investigate the allegations was given access to Child X and conducted a videotaped interview. The social worker and all evaluating and treating professionals testified at trial. Unlike Child X, Child Y remained in the home where the acts occurred. The social worker was initially given access to Child Y and conducted a thorough videotaped interview with the child in the days following the disclosure of sexual misconduct, but after that interview the child‘s mother refused to allow further access to the child. Child Y was not evaluated medically and did not receive treatment or counselling. Child Y did not testify at trial.
A defendant in a criminal case may apply for reopening of the appeal from the judgment of conviction and sentence, based on a claim of ineffective assistance of appellate counsel. An application for reopening shall be filed in the court of appeals where the appeal was decided within ninety days from journalization of the appellate judgment unless the applicant shows good cause for filing at a later time.
{¶4} Under
- The appellate case number in which reopening is sought and the trial court case number or numbers from which the appeal was taken;
- A showing of good cause for untimely filing if the application is filed more than ninety days after journalization of the appellate judgment.
- One or more assignments of error or arguments in support of assignments of error that previously were not considered on the merits in the case by any appellate court or that were considered on an incomplete record because of appellate counsel‘s deficient representation;
- A sworn statement of the basis for the claim that appellate counsel‘s representation was deficient with respect to the assignments
of error or arguments raised pursuant to division (B)(2)(c) of this rule and the manner in which the deficiency prejudicially affected the outcome of the appeal, which may include citations to applicable authorities and references to the record; - Any parts of the record available to the applicant and all supplemental affidavits upon which the applicant relies.
{¶5} Although Appellant has filed a timely application for reopening that includes a sworn statement, Appellant has failed to provide the portions of the record on which he relies but cites throughout his application. ”
{¶6} Appellant‘s underlying appeal contained three assignments of error. The first two challenged the sufficiency and the manifest weight of the evidence against him. The third challenged the trial court‘s decision denying Appellant‘s motion for mistrial. Appellant now presents three additional issues in his application
ASSIGNMENT OF ERROR NO. 1
Trial counsel provided ineffective assistance for the reasons listed below which violated the Appellants rights to a fair and impartial trial against the Fifth, Sixth and Fourteenth Amendments of the United States Constitution.
ASSIGNMENT OF ERROR NO. 2
The sufficiency and the weight of the evidence should be reviewed to the evidence actually presented at trial.
ASSIGNMENT OF ERROR NO. 3
The trial court was in error when it sentenced the appellant to the maximum term on each count and ran the terms consecutive.
{¶7} Appellant also raises appellate counsel‘s decision to withdraw after the matter had been fully briefed due to counsel‘s change of employment. Brown, supra. Appellant did not request oral argument. Appellant‘s arguments were completely presented to this Court before his counsel withdrew. Appellant was not prejudiced by counsel‘s withdrawal after fully preparing this matter for appeal but just prior to our actual decision.
{¶8} When evaluating the effectiveness of appellate counsel, we must determine whether counsel‘s performance fell below an objective standard of reasonableness and whether there is reasonable probability the result of the appeal
{¶9} To the extent that Appellant bases his claim on trial counsel‘s alleged failure to accumulate exculpatory evidence through interview and investigation, Appellant mistakes our role and the nature of his application for reopening. It is well established that appellate counsel cannot add material to the record that was not part of the record before the trial court. State v. Ishmail, 54 Ohio St.2d 402 (1978), paragraph one of the syllabus. Our role is limited to reviewing what actually transpired in the trial court as reflected in that record. Id. A claim regarding failure to
{¶10} Appellant‘s second proposed assignment of error was fully addressed by our analysis of the first and second assignments of error in his underlying appeal. As we explained in ¶14-15 of our Opinion:
Appellant‘s arguments in support of his first and second assignments of error do not address the sufficiency or weight of the evidence actually presented at trial, but instead seek to undermine the quality of the underlying investigation. Our role on appeal, however is to address the evidence presented at trial. In this matter, the jury heard testimony from Child X, her older sister, Child X‘s father Marco, his former
girlfriend, the Child and Family Services Investigator, Child X‘s counselor and the examining physician. Each witness was able to separately discuss both what they heard from the children, the father, and the sister, as well as what they themselves had observed. Most importantly, Child X testified specifically as to the conduct that satisfied each element of the offense and was subjected to cross-examination on those issues. Appellant had every opportunity to advance his theory that Child X‘s father created and manipulated the situation to further his goal of obtaining custody of Child X, and the jury heard that theory, beginning with opening statements, throughout the case. Appellant‘s theory of his defense does not alter the fact that the testimony presented at trial, if believed, clearly established each element of the offenses charged and thus was sufficient to convict. ***
On review, the jury‘s verdict will not be disturbed where, as here, there is probative evidence in the record which goes to all of the elements of the crime and which, if believed, would convince the average mind beyond a reasonable doubt of the guilt of the accused. Jenks and Barnhart, supra.
{¶11} Again, Appellant‘s second proposed assignment of error is not supported by any reference to the record. As such, it is not properly before us now. Nevertheless, these issues were completely addressed in our original Opinion.
{¶13} Appellant has failed to comply with
Waite, J., concurs.
Vukovich, J., concurs.
DeGenaro, P.J., concurs.