STATE OF OHIO v. DORIAN BROWN
No. 106582
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
April 4, 2019
[Cite as State v. Brown, 2019-Ohio-1235.]
BEFORE: Keough, J., E.A. Gallagher, P.J., and Jones, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-600700-A
RELEASED AND JOURNALIZED: April 4, 2019
ATTORNEY FOR APPELLANT
Eric M. Levy
55 Public Square, Suite 1600
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley
Cuyahoga County Prosecutor
By: Andrew J. Santoli
Holly Welsh
Assistant County Prosecutors
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:
{1} In this delayed appeal, defendant-appellant, Dorian Brown (“Brown“), appeals his convictions for trafficking in persons and compelling prostitution. For the reasons that follow, we affirm.
{2} In November 2015, Brown was named in a 12-count indictment charging him with aggravated murder, murder, two counts of aggravated robbery, three counts of felonious assault, kidnapping, trafficking in persons, compelling prostitution, and grand theft. Most counts contained firearm, prior conviction, and repeat violent offender specifications.
{3} The case proceeded to a jury trial, where the following relevant evidence pertaining to Brown‘s convictions was presented.
{4} D.R., the victim identified in the trafficking in persons charge, testified that following her nineteenth birthday, she was struggling financially to support herself and her minor child. She approached her friend, D.B. who had told her that she engaged in prostitution and that her “dudes” would help D.R. and “get her where she needed to be.” D.R. stated that because she trusted D.B. that she would be “100 percent safe,” she voluntarily entered the world of prostitution. Around June 18, 2015, D.B.‘s pimp, Jason Dowell a.k.a. Santana, picked up D.R. and her minor child and brought them to an Econo Lodge in Warrensville, Heights, Ohio. According to D.R., Santana explained the process from taking pictures to creating advertisements. When she arrived at the hotel, she met other prostitutes, including B.F.; Brown was also present. D.R. stated that B.F. and D.B. helped her with photographs and creating her backpage.com escort advertisement.
{5} At first D.R. worked for Santana, who paid for the hotel rooms, provided her and her son with food, and took care of them. However, he did not give her any money to help her financially support herself. She stopped working for him after a few days and began working for Brown, who told her he would give her fifty-percent of the money received from her “dates.” D.R., D.B., and B.F. started working for Brown at an America‘s Best Value Inn near the airport.
{6} Throughout D.R.‘s relationship with Brown, he took her and the other “girls”1 to work at different hotels in Northeast Ohio and to Columbus on one occasion. D.R. stated that Brown once took her, D.B., B.F., another girl, and his girlfriend to Maryland because Brown “wanted to do something nice for us.” Although D.R. stated it was a vacation, “we did work.”
{7} Over time, Brown stopped giving D.R. money. According to D.R., Brown
{8} However, the money situation was not “fine.” By the end of June, or early July 2015, Brown stopped giving any money to D.R. even when she asked. She said typically he would give her money to get her nails done or buy clothes, but that stopped. It was clear to her and the other girls that Brown was treating them differently, which upset them. D.R. explained that she started prostituting to help herself and her son, but she was not getting any help; she needed money. D.R. said that she “wanted to get in, make the money, and get out.” And when Brown changed the money arrangement, “it just kind of had me stuck there and I didn‘t really know what to do after that; I felt like I was in too deep.”
{9} Despite the financial control over the girls, D.R. testified that she never saw Brown physically assaulting anyone, but once heard, in an adjacent room, an altercation between B.F. and Brown. She stated she heard “banging, [B.F.] yelling, and * * * things being thrown,” and “cussing.” Hearing this made D.R. “nervous because she did not want Brown to feel like he had to put his hands on [her]; so [she] cooperated and did what he asked [her] to do.”
{10} Eventually, B.F. and D.B. decided to leave Brown. D.R. stated that she felt she could not leave because she needed money and had nowhere to go. It was after D.B. left that Brown got upset with her and grabbed her arm when the cost of a tattoo exceeded the original-quoted price — she said this made her feel “powerless” because without Brown she would “have nothing for her son.”
{11} However, one night after Brown and his girlfriend left the hotel, D.R. left at D.B.‘s encouragement and stayed in another room in the hotel. She and D.B. began working with Cartier and Dave. Brown‘s girlfriend called D.R. asking about her whereabouts, and despite being in the same hotel, D.R. told her that her aunt had picked her up.
{12} In the early morning hours of June 17, 2015, about four or five days after her abrupt decision to leave Brown, D.R. received a call about a “special” that she and D.B. offered where a person could receive services from two girls for one price. The escort advertisement included pictures of both D.R. and D.B. When she received the call, D.B. was no longer working in the business, but another prostitute, Elizabeth O‘Brien, was working with D.R.
{13} When the caller arrived at the room, he was not alone. The men were later identified as Octavius Hudson and Marcellus Webster. Hudson testified that he and his friend Webster, who is also Brown‘s cousin, responded to the “backpage.com” escort advertisement. According to Hudson, Brown directed them to the Econo Lodge in Warrensville Heights.
{14} Hudson testified that when he and Webster arrived at the hotel room, they formulated a plan to only rob the two girls; however, he engaged in sexual conduct with D.R. prior to the attempted robbery. Following the sexual encounter, Hudson brandished his firearm and demanded money. Elizabeth attempted to attack Hudson; however, the gun fired, killing Elizabeth.
{15} Phone records revealed that during the early morning hours of July 17, 2015, Brown called Hudson‘s phone six times between 3:34 a.m. and 4:34 a.m.
{16} D.R. testified that after she left Brown, she never heard from him again until after Elizabeth‘s murder, when he called her. She stated she was scared to talk to him.
{17} D.B. testified that she worked as a prostitute for Santana, but when he left her, she started working for Brown. She stated that Brown was never physically abusive toward her, and she had no knowledge of him being abusive toward D.R, but knew that he abused B.F. Additionally, D.B. stated that she never witnessed, saw, or heard about any repercussions that any girl faced who left Brown. Nevertheless, she stated she was scared to testify, because she did not want to get hurt. D.B. admitted that had she not left “the business,” she would have been in the room with D.R. the night Elizabeth was shot.
{18} B.F. testified that she began working as a prostitute for Brown in June 2015. She stated he took pictures of her, and created her backpage.com advertisements. According to B.F., she was supposed to receive one-half of her earnings, but Brown did not give her any money. According to B.F., Brown wanted her to get a tattoo of a crown with a “D” on it, but she refused. She testified, over objection, that she left Brown because “he started to become something he wasn‘t and he kept putting his hands on me.” (Tr. 1310.) And despite her never seeing Brown being physical with D.R., she stated, without objection, that he was “physically hitting me, * * * beating me, punching me, slapping me, whatever the case may be.” (Tr. 1310.) She testified that D.R. was present one time when this happened to her.
{19} The jury found Brown guilty of trafficking in persons and compelling prostitution; and acquitted him of all the other charges relating to the murder. Pursuant to
{20} Brown now appeals, raising eight assignments of error.
I. Unanimous Verdict — Alternative Means v. Multiple Acts
{21} In his first assignment of error, Brown contends that the trial court committed plain error and violated his right to due process of law and a unanimous verdict pursuant to
{22} Brown did not object to the jury instructions. Accordingly, this assignment of error is reviewed for plain error. Under
{23} Brown does not identify whether this case is an “alternate means” or a “multiple acts” case, contending that under either theory, his right to a unanimous verdict was violated. However, the distinction between the two types of cases is “meaningful” when deciding whether a verdict violates
{24} Supporting his argument that this case is a “multiple acts” case, Brown relies on this court‘s decision in State v. Jackson, 8th Dist. Cuyahoga No. 95920, 2011-Ohio-5920. However, this court recently distinguished Jackson by recognizing that the discussion of “alternative means” and “multiple acts” in Jackson was not necessary to resolve the appealed issue that the indictment was duplicative. State v. McKinney, 8th Dist. Cuyahoga No. 106377, 2019-Ohio-1118. Accordingly, the dicta in Jackson is not applicable to this appeal where Brown is challenging the instructions given to the jury and whether those instructions prevented the jury from reaching a unanimous verdict as required by
{25} A criminal defendant is entitled to a unanimous verdict.
{26} The parties agree that the proper analysis to determine whether a defendant‘s
{28} However, in a “multiple acts” case, “several acts are alleged and any one of them could constitute the crime charged. In these cases, the jury must be unanimous as to which act or incident constitutes the crime. To ensure jury unanimity in multiple acts cases, we require that either the state elect the particular criminal act upon which it will rely for conviction, or that the trial court instruct the jury that all of them must agree that the same underlying criminal act has been proved beyond a reasonable doubt.” Id. at ¶ 50.
{29} Simply put, in an alternative means case, juror unanimity is not required when there are alternative means or ways that an element of the offense could be committed. For example, the charge of rape contains the element of sexual conduct. The means by which that element is satisfied — either by vaginal rape, anal rape, or oral rape, does not require juror unanimity because all three means are, by definition, “sexual conduct.” Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995, at ¶ 43, citing State v. Thompson, 33 Ohio St.3d 1, 514 N.E.2d 407 (1987)Id.; see also State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315 (alternative theories for the mens rea element of murder); State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31 (alternative predicate crimes that underlie aggravated murder; jurors need not agree on a single means for committing an offense); State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239 (discussion of alternative means regarding aggravated burglary, menacing by stalking, and witness-murder specification).
{30} The Ohio Supreme Court further determined that its decision in State v. Johnson, 46 Ohio St.3d 96, 545 N.E.2d 636 (1989), recognized a different standard in a “multiple-acts” case. Gardner at ¶¶ 51-53. In Johnson, the court discussed the idea that “if a single count of an indictment can be divided into two or more ‘distinct conceptual groupings,’ the jury must be instructed specifically that it must unanimously find that the defendant committed acts within one conceptual grouping in order to reach a guilty verdict.” Johnson at 104-105, quoting United States v. Gipson, 553 F.2d 453, 458 (5th Cir.1977). But if a single count can be divided into a “single conceptual grouping of related facts,” no specific instruction is necessary, because in such a case, the alternatives presented to the jury are not conceptually distinct, and a “patchwork” verdict is not possible. Johnson at 105; see also Gardner at ¶ 56 (recognizing distinct conceptual groups is viable and valuable for state courts in consideration of jury-unanimity questions).
{31} Thus, in a multiple acts case, the statutory language of the single offense itself sets forth multiple acts, or distinct conceptual groupings of how a defendant could commit the offense. See State v. Triplett, 7th Dist. Mahoning No. 17 MA 0128, 2018-Ohio-5405, ¶ 69. Therefore, the jury must be
{32} Accordingly, to determine whether an offense involves “alternative means” or “multiple acts,” this court must look at the language of the indictment, and determine whether it alleges multiple “distinct conceptual groupings” of acts. Johnson at 104.
{33} Brown was charged with trafficking in persons, in violation of
did knowingly recruit, lure, entice, isolate, harbor, transport, provide, obtain, or maintain, or did knowingly attempt to recruit, lure, entice, isolate, harbor, transport, provide, obtain, or maintain Jane Doe and Dorian Brown knew that Jane Doe would be subjected to involuntary servitude or be compelled to engage in sexual activity for hire, engage in a performance that is obscene, sexually oriented, or nudity oriented, or be a model or participant in the production of material that is obscene, sexually oriented, or nudity oriented.
{34} In this case, the single offense of “trafficking in persons” could be committed by multiple acts that, when reviewed, involved two distinct conceptual groupings — either by (1) subjecting an individual to involuntary servitude, or (2) compelling an individual to engage in an action that is sexual in nature. “Human trafficking can be either sex trafficking or labor trafficking.” See State v. Nelson, 2017-Ohio-6883, 83 N.E.3d 1009, ¶ 55 (8th Dist.), quoting Rocha, Our Backyard Slave Trade: The Result of Ohio‘s Failure to Enact Comprehensive State-Level Human-Sex Trafficking Legislation, 25 J.L. & Health 381, 421 (2012). Accordingly, based on the language in the indictment, there must be jury unanimity as to the underlying act charged, and the jury should be specifically instructed or the state should elect which act the defendant committed.3
{35} As further evidence that this case is a multiple acts case, the punishment for each distinct conceptual grouping is different. See, e.g., State v. James, 698 P.2d 1161, 1165 (Alaska 1985) (multiple punishment for the conduct charged is a
{36} Accordingly, under Gardner, the fact that some of the jurors might have found that Brown committed human trafficking in one way while others found that he committed it in another violated
{37} In this case, the evidence was overwhelming that the act by which Brown was trafficking in persons was sexual in nature. There appeared to be no juror confusion regarding this fact because the jurors also found Brown guilty of compelling prostitution, another sexual offense. The only evidence presented was that the activity that D.R. was compelled to engage in was entirely sexual in nature. Accordingly, Brown‘s first assignment of error is overruled.
II. Sex Offender Classification
{38} In his second assignment of error, Brown contends that the trial court erred when it classified him as a Tier II sex offender after he was generally convicted of trafficking in persons without additional findings. No objection was raised at the time of classification, and thus, we review for plain error, which will not be recognized unless exceptional circumstances exist and a miscarriage of justice will occur if plain error is not recognized.
{39} When S.B. 10 abolished the prior sexual offender classifications, the sex offender classifications under the new Adam Walsh Act, left little, if any, discretion to the trial court in classifying an offender. See
{40} In this case, Brown was charged with
{41} This is reflected by the plain and unambiguous language of
{42} Admittedly, if Brown was convicted of only the involuntary servitude portion of the statute, he would not be subject to a sex offender classification. However, the evidence that was presented to the jury at trial overwhelmingly supported that Brown‘s actions were sexual in nature, not merely for general forced human labor as the historical roots of involuntary servitude suggested. Accordingly, we decline to exercise our discretion to find plain error because no manifest injustice occurred.
{43} Brown‘s second assignment of error is overruled.
III. Sufficiency of the Evidence
{44} In this third assignment of error, Brown contends that the trial court erred in finding him guilty where the evidence presented at trial was insufficient to overcome his
{45} A
{46} Brown was convicted of
No person shall knowingly recruit, lure, entice, isolate, harbor, transport, provide, obtain, or maintain * * *
(1) The offender knows that [D.R.] will be subjected to involuntary servitude or be compelled to engage in sexual activity for hire, engage in a performance that is obscene, sexually oriented, or nudity oriented, or be a model or participant in the production of material that is obscene, sexually oriented, or nudity oriented.
{47} Brown contends that prostitution by willing adults is not human trafficking, citing to this court‘s decision in Nelson, 2017-Ohio-6883, 83 N.E.30 1009, at ¶ 55. We agree that when a person decides to prostitute oneself, that is not trafficking in persons. However, when another individual takes an affirmative action to persuade, attract, or enable another, is actively involved in aiding in the act of prostitution, profits from another‘s prostitution, and exercises some dominion or control over the individual, that is trafficking in persons. See generally Rocha, Our Backyard. Moreover, the statute does not contemplate that the victim must have knowledge that these events will occur. The victim‘s mental state is irrelevant; it is the mental state and intentions of the defendant that are the focus of the offense of trafficking in persons.
{48} Brown further maintains that D.R. voluntarily sought out and engaged in prostitution, and was free to leave at any time as the evidence showed at trial. His argument focuses on whether the evidence was sufficient to prove “force.” However,
{49} Brown cites to this court‘s decision in State v. Warren, 8th Dist. Cuyahoga No. 102181, 2015-Ohio-3671, to support his position that his conduct was insufficient to support his conviction. He contends that, unlike in his case, Warren exercised “pimp control” over his victims by instilling fear through beating another girl in front of the victims, taking money and social security benefits from the victim, confiscating the victims’ birth certificates, and by mentally and emotionally abusing the victims to the point of complete submission to his control. Id. at ¶¶ 38-40.
{50} Although the facts in Warren unequivocally demonstrate the crime of trafficking in persons at its worst, the facts in this case equally satisfy the elements of the offense; Brown‘s conduct will not be diminished because it is not the worst form of the offense.
{51} D.R. admitted that she initially voluntarily engaged in prostitution. However, over the course of a few weeks, she was overcome with fear and duress that if she left Brown, she would have no means to support herself or her son. She testified that he transported her to the state of Maryland, the city of Columbus, and different hotels in Northeast Ohio for the purposes of engaging in sexual activity. D.R. stated that initially Brown agreed to give her one-half of the money she earned; unlike what was occurring when she worked for Santana. The jury could reasonably
{52} Therefore, while “force” in the physical aspect of the word may not have been prevalent, the evidence was sufficient that Brown enticed, maintained, and provided for D.R., knowing that she would be compelled to engage in sexual activity for continuation of that maintenance and support of herself and her son. Accordingly, viewing the evidence in the light most favorable to the state, we find sufficient evidence was presented supporting Brown‘s conviction for trafficking in persons in violation of
IV. Manifest Weight of the Evidence
{53} In contrast to a sufficiency argument, a manifest weight challenge questions whether the state met its burden of persuasion. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. A reviewing court “weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v. Thompkins, 78 Ohio St.3d 380, 388, 678 N.E.2d 541 (1997). A conviction should be reversed as against the manifest weight of the evidence only in the most “exceptional case in which the evidence weighs heavily against the conviction.” Id.
{54} Although we review credibility when considering the manifest weight of the evidence, we are cognizant that determinations regarding the credibility of witnesses and the weight of the testimony are primarily for the trier of fact. State v. Bradley, 8th Dist. Cuyahoga No. 97333, 2012-Ohio-2765, ¶ 14, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). The trier of fact is best able “to view the witnesses and observe their demeanor, gestures, and voice inflections, and use these observations in weighing the credibility of the proffered testimony.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24. The jury may take note of any inconsistencies and resolve them accordingly, “believ[ing] all, part, or none of a witness‘s testimony.” State v. Raver, 10th Dist. Franklin No. 02AP-604, 2003-Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).
{55} Brown contends in his fourth assignment of error that his conviction is against the manifest weight of the evidence. Brown does not argue this assignment of error separately; rather, he reincorporates the arguments raised challenging the sufficiency of the evidence. This court could summarily overrule the assignment of error on this basis alone. See
{57} Accordingly, this is not the exceptional case where the evidence weighs against the verdict. The jury did not clearly lose its way or create a miscarriage of justice by finding Brown guilty of trafficking in persons.
{58} Brown‘s fourth assignment of error is overruled.
V. Date Specificity
{59} In his fifth assignment of error, Brown contends that his conviction is not supported by sufficient evidence and is against the manifest weight of the evidence because no evidence was presented that he committed any act of trafficking persons on July 17, 2015, the date specified in the indictment. Typically, this type of argument is raised challenging the
sufficiency of the indictment, which must be done prior to trial. See
{60} As previously determined, Brown‘s conviction is supported by sufficient evidence and is not against the manifest weight of the evidence. Precise dates and times are not essential elements of an offense. State v. Sellards, 17 Ohio St.3d 169, 171, 478 N.E.2d 781 (1985). The “state does not need to prove the exact date of the offense, only that it occurred ‘on or about’ a certain date or within a certain time period.” State v. Mathis, 8th Dist. Cuyahoga No. 83311, 2004-Ohio-2982, ¶ 18; State v. Jones, 8th Dist. Cuyahoga No. 92921, 2010-Ohio-902, ¶ 17 (sufficient evidence found where the offenses took place on a date reasonably near the specified “on or about” date). “[I]n a criminal charge the exact date and time are immaterial unless in the nature of the offense exactness of time is essential.” Id., quoting Tesca v. State, 108 Ohio St. 287, 485, 140 N.E. 629 (1923), paragraph one of the syllabus.
{61} In this case, the indictment charged Brown with “trafficking in persons” on or about July 17, 2015. D.R. testified that she began prostituting for Brown from June until four or five days prior to July 17, 2015. During that time, she engaged in sexual activity in rooms that Brown reserved at an Econo Lodge and an America‘s Best Value Inn. Throughout these stays, Brown instructed other prostitutes to teach D.R. how to take photos and post ads. Additionally, D.R. testified that she would have three or four clients a day. Brown would collect the money that D.R. earned during these sexual encounters.
{62} There was no need to prove the offense occurred specifically on the date alleged; there was sufficient evidence to show the offense occurred reasonably before and on July 17, 2015. Additionally,
{63} Brown‘s fifth assignment of error is overruled.
VI. Witness Testimony
{64} Brown‘s jury trial was scheduled to begin on Monday, November 28, 2016. On Wednesday, November 23, 2016, the day before Thanksgiving, the state filed its notice of intent to present evidence pursuant to
{65} On the first day of trial, defense counsel objected and moved to limit the state‘s intent to use
{66} The trial court confirmed that the Jane Does 2-7 listed in the new indictment were in fact the potential
{67} The state maintained that the “gist” of the testimony would be that the “Jane Does 2-7” worked for Brown and that he used “fear, force to compel the women to engage in prostitution, would take their money.” (Tr. 56.) They expected the victim listed as Jane Doe 1 (D.R.) to testify that Brown did not give them their money and that the girls were subject to abuse or threat of abuse. The state also expected another “Jane Doe,” D.B., who was disclosed on its witness list, would also testify to this effect.
{68} The state maintained that the use of the additional Jane Does “adds to the evidence of the human trafficking and the level of fear that was employed by Brown.” The trial court hinted that the additional testimony would likely corroborate both D.R. and D.B.‘s testimony.
{69} When questioned about the late disclosure, the stated maintained that (1) it did not know about the additional Jane Does, (2) there were safety reasons why disclosure was late, and (3) some of the Jane Does were underage at the time. The state admitted that only the initials of the Jane Does were provided to the defense; the names were redacted. The court questioned that the first time the defense would hear the actual names of the Jane Does would be at trial. The state indicated that the names and criminal records would be provided.
{70} The court recognized the unfairness to the defense in the late disclosure. The defense agreed and stated any other acts testimony given by the Jane Does would be in violation of
{71} The state suggested that the issue be readdressed “when we get to it” because the state was unsure what D.R. and D.B. would testify about and “what other purposes the testimony of Jane Does 2-7 may be pertinent and relevant in this case.” (Tr. 64.) The court agreed to preliminarily deny the motion in limine, but requested that it be reminded of this issue when, and if, any of the Jane Does were called to testify.
{72} During the middle of trial, and following D.R.‘s testimony, the state placed on the record the names of Jane Does 2-7 — the state‘s “proposed 404(B) witnesses.” (Tr. 966.) Included in that list was D.B., who the state disclosed was on the witness list for this case, and B.F., who was identified by D.R. and discussed during testimony.
{73} Following D.B.‘s testimony, the state called B.F. as witness. The record is silent as to whether the parties discussed the admissibility of her testimony prior to being called, although later the state hinted that it announced the day prior that she would be testifying. After B.F. stated that she learned Brown was a pimp, defense counsel requested to approach the bench; the request was denied. Counsel then objected, which was overruled. Following B.F.‘s next answer, counsel again objected, which was overruled. When the state questioned B.F. about whether Brown was “physically abusive or forceful” the court sustained another defense objection. However, no other objection was raised and the jury heard B.F. testify that B.F. left Brown because he “started to become something he wasn‘t” and “he kept putting hands on me by physically hitting me, beating me, punching me, and slapping me.” (Tr. 1310-1318.) B.F. testified that D.R. was present on one occasion when this occurred, but that she never saw Brown being physical with D.R. (Tr. 1318.)
{74} Following B.F.‘s testimony, defense counsel moved for a mistrial based partly on the court allowing B.F. to testify despite the discovery violation and improper
{75} The state admitted that B.F. was not previously disclosed, and that her statement made to police was not given to counsel. However, the state explained that D.R. mentioned B.F. only in preparation for trial. However, the defense reminded the court that D.R. mentioned B.F. in her report given to Warrensville Heights police.
{76} The state maintained that B.F. was not only an other acts witness, but a fact witness, corroborating certain events that occurred during the time that D.R. was working for Brown. The state further asserted that B.F.‘s testimony was proper under
{77} The trial court denied Brown‘s motion for a mistrial, finding that although the state violated
{78} In response to the court‘s question regarding whether B.F.‘s testimony should be stricken, the state maintained that the least restrictive sanction would be to give Brown a continuance to conduct any subsequent investigation, considering B.F.‘s name was given at the start of trial. Defense counsel responded that only the initials of “B.F.” were given at the start of trial; her name, statement, or background were never provided.
{79} The court denied Brown‘s motion to strike B.F.‘s testimony, ruling that
The ultimate purpose of this trial is to discern, as best as possible, the truth of what occurred in June and July 2015. To strike [B.F.‘s] testimony in its entirety would not serve that purpose. It would serve the purpose of sanctioning or punishing the executive branch for its failure to abide by the rules.
(Tr. 1333-1334.)
{80} Immediately before the jury was charged, the state advised the court that it had just provided to Brown‘s counsel B.F.‘s police statement and criminal history. It further advised the court that the state offered the defense an opportunity to recall B.F. based on the new information, but that counsel declined. Defense counsel agreed with the state‘s assertions, but asked that the statement and background information be made part of the record for appeal purposes.
{81} Despite the trial court allowing B.F.‘s testimony to remain part of the record and for the jury to consider, it did not give, nor did defense counsel request, any specific limiting instruction regarding the “other acts” evidence.
{82} In his sixth assignment of error, Brown contends that the trial court erred in permitting the trial testimony of B.F., who was not identified on the state‘s witness list, whose prior interview and statement were withheld from appellant‘s counsel, and whose testimony was overly prejudicial to appellant and in violation of
A. Discovery Violation
{83} After Brown discovered that the
{84} The trial court found that the state violated
{85}
{86} A trial court has broad discretion in regulating discovery and in determining a sanction for a discovery violation. Darmond at ¶ 33. When imposing a sanction, however, the trial court must inquire into the circumstances and impose the least severe sanction that is consistent with the purpose of the rules of discovery. Papadelis, at paragraph two of the syllabus; State v. Rucker, 8th Dist. Cuyahoga No. 105628, 2018-Ohio-1832, ¶ 20.
{87} In determining the appropriate sanction, a trial court must consider the following three factors: (1) whether the failure to disclose was a willful violation of
{88} In this case, the state put the defense on notice through its intent to use
{89} Our review of the record demonstrates that the trial court did not abuse its discretion. By the time that B.F. testified, the jury had already heard testimony from both D.R. and D.B. regarding Brown‘s conduct and treatment toward the girls. B.F. testified about Brown‘s involvement in creating advertisements and his role in her prostitution. B.F. corroborated both D.R. and D.B.‘s previously given testimony about Brown‘s change in the business operation by taking all of their money instead of splitting the money as originally promised. B.F. testified about the physical abuse that she suffered from Brown — abuse about which D.B. previously testified. Additionally, D.R. heard an altercation between B.F. and Brown on one occasion. Accordingly, Brown was not surprised by B.F.‘s testimony that he was abusive.
{90} Although Brown was not provided with B.F.‘s statement to police and criminal background until after she testified, it was made part of the record for appeal purposes. Reviewing those documents, we find that the documents would not have been beneficial to Brown in preparation for his defense.
{91} Accordingly, even though the state violated
B. Evid.R. 404(B)
{92} Brown also contends that B.F.‘s testimony was not permissible under any exception to
{94}
In any criminal case in which the defendant‘s motive or intent, the absence of mistake or accident on his part, or the defendant‘s scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant‘s scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant.
{95} In addition,
{96} In deciding whether to admit other acts evidence, trial courts should conduct a three-step analysis:
The first step is to consider whether the other acts evidence is relevant to making any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.
Evid.R. 401 . The next step is to consider whether evidence of the other crimes, wrongs, or acts is presented to prove the character of the accused in order to show activity in conformity therewith or whether the other acts evidence is presented for a legitimate purpose, such as those stated inEvid.R. 404(B) . The third step is to consider whether the probative value of the other acts evidence is substantially outweighed by the danger of unfair prejudice.
Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, at ¶ 20.
{97} In this case, the state‘s pretrial notice of intent explained that other acts evidence would be used to show motive, preparation, plan, or scheme.5 During trial, the state maintained that B.F.‘s testimony was relevant and necessary to prove the element of “force” by showing that Brown engaged in a common plan, scheme, or motive. Brown contends that the evidence was not used to prove a continued pattern of conduct, but offered solely to prove an element of the offense by showing conduct toward a separate individual.
{98} Applying the Williams factors, we agree with Brown. Although B.F.‘s testimony about Brown creating advertisements, taking pictures, and changing the payment arrangement was relevant, admissible to show plan, scheme, and pattern of conduct, and probative, B.F.‘s testimony about Brown physically abusing her was used to prove impermissible character evidence that prompted the jury to concluded that if Brown physically abused B.F., he must have abused D.R. Moreover, this prejudicial testimony outweighed any probative value.
{100} Reviewing this testimony in isolation, it appears egregious and prejudicial. However, this case was a murder trial where Brown was alleged to have orchestrated two men to rob two women, with an unintended victim getting shot and killed. Accordingly, when viewed in the context of the entire trial, we find B.F.‘s entire testimony harmless. The use of “force” itself is not an element to the offense of “trafficking in persons“; rather, the element is “compelled.”
{101} Based on D.R.‘s own testimony, sufficient evidence was presented that the “compelled” element was satisfied. D.R. testified that Brown‘s withholding of her money “just kind of had me stuck there and I didn‘t really know what to do after that; I felt like I was in too deep.” She stated that Brown maintained and provided for her and her son; she depended on Brown to feed her son every day. In addition to the mental control Brown had over D.R., she also testified that on one occasion, he used physical force when he grabbed her arm following an incident involving a tattoo. D.R. stated that Brown‘s conduct made her feel “powerless.” This testimony, alone, was sufficient for the jury determine that the state proved the element of “compulsion” beyond a reasonable doubt. B.F.‘s testimony was not necessary and we cannot say that her testimony contributed to Brown‘s conviction.
{102} As an aside, we note that counsel could have renewed his objection or motion in limine prior to B.F. testifying to remind the trial court about the “bridge” that it was going to cross when the situation arose. The trial court admitted that its mode of conducting trials may have inhibited the defense from raising a proper objection prior to B.F. testifying. Counsel must be vigilant in preserving the record and a defendant‘s arguments for appellate review. However, a trial court should not be so strict in its manner of conducting trials to allow counsel to be effective.
{103} Brown‘s sixth assignment of error is overruled.
VII. Consecutive Sentences
{104} In his seventh assignment of error, Brown contends that the trial court erred when it ordered his sentence to be served consecutively to the sentence imposed in Cuyahoga C.P. No. CR-16-611487. In Brown, 8th Dist. Cuyahoga No. 106410, 2019-Ohio-527, this court reversed his convictions in Cuyahoga C.P. No. CR-16-611487 and remanded the case for further proceedings. Accordingly, the assignment of error is moot.
VIII. Effective Assistance of Counsel
{105} Brown contends in his eighth assignment of error that he was denied effective assistance of counsel when, counsel failed to object to the (1) improper jury instruction given on Count 10, trafficking in persons, and (2) the sex offender classification.
{106} To establish ineffective assistance of counsel, a defendant must demonstrate (1) that counsel‘s performance
{107} The failure to prove either prong of the Strickland two-part test makes it unnecessary for a court to consider the other prong. State v. Madrigal, 87 Ohio St.3d 378, 388-389, 721 N.E.2d 52 (2000), citing Strickland at 697. “In particular, a court need not determine whether counsel‘s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. * * * If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice * * * that course should be followed.” Strickland at id.
{108} Brown summarily asserts that if this court denies him relief based upon any failures by counsel, this court should review those failures as ineffective assistance of counsel. This request is contrary to
{109} Accordingly, we find that Brown was not deprived of effective assistance of counsel. Brown‘s eighth assignment of error is overruled.
{110} Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
KATHLEEN ANN KEOUGH, JUDGE
EILEEN A. GALLAGHER, P.J., and LARRY A. JONES, SR., J., CONCUR