STATE OF OHIO v. CHARLES BROWN
C.A. No. 18CA011310
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
June 28, 2019
2019-Ohio-2599
SCHAFER, Judge
)ss:
COUNTY OF LORAIN )
IN THE COURT OF APPEALS
NINTH JUDICIAL DISTRICT
STATE OF OHIO
Appellee
v.
CHARLES BROWN
Appellant
C.A. No. 18CA011310
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
CASE No. 16CR094735
DECISION AND JOURNAL ENTRY
Dated: June 28, 2019
SCHAFER, Judge.
{¶1} Defendant-Appellant, Charles Brown, appeals from the judgment of the Lorain County Court of Common Pleas. This Court reverses.
I.
{¶2} D.B. is Brown’s daughter, though he had little involvement in her life for many years. Once she became a preteen and teenager, Brown spent more time with her, visiting and taking her and her half-sisters for shopping trips. He also began talking to her about “sex lessons.” Brown repeatedly expressed his desire to teach D.B. how to engage in both oral sex and vaginal intercourse so that she could entice and maintain the interest of a wealthy man someday. He raised the subject whenever the two were alone together; a circumstance that increased once she moved in with him and her half-sisters at the age of seventeen.
{¶3} About a month after D.B. moved in with Brown, he grounded her because she spent the night elsewhere and failed to call home. Although he allowed her to go to work each
{¶4} A grand jury indicted Brown on one count of attempted sexual battery, one count of attempted child endangering, and one count of domestic violence. At the conclusion of his trial, a jury found Brown guilty of the two attempt counts, but not guilty of the domestic violence count. The two attempt counts were then merged as allied offenses of similar import such that the court only sentеnced Brown on the attempted sexual battery count. The court imposed a prison sentence of fourteen months and classified Brown as a tier III sexual offender.
{¶5} Brown now appeals from the trial court’s judgment and raises seven assignments of error for our review. For ease of analysis, we consolidate several of the assignments of error.
II.
Assignment of Error I
There was insufficient evidence of attempted sexual battery to sustain a conviction in Count One.
Assignment of Error II
There was insufficient evidence of attempted child endangerment to sustain a conviction in Count Two.
{¶6} In his first and second assignments of error, Brown argues that his convictions for attempted sexual battery and attempted child endangering are based on insufficient evidence. We agree.
{¶7} A sufficiency challenge of a criminal conviction presents a question of law, which we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). “The relevant inquiry is
{¶8}
{¶9}
the term “abuse[]” * * * means to “ill-use, maltreat; to injure, wrong or hurt.” State v. Nivert, 9th Dist. Summit No. 16806, 1995 WL 608415[,] *2 (Oct. 18, 1995)[, quoting I Oxford English Dictionary 44-45 (2d ed.1933)]. “Torturе,” as used in that same section, means: “(1) the infliction of severe pain or suffering (of body or mind); (2) acting upon violently in some way, so as to strain, wrench, distort, twist, pull or knock about.” [Nivert at *2, quoting XI Oxford English Dictionary at 169-170]. Finally, to treat someone “‘cruelly’ is to: (1) demonstrate indifference to or delight in another’s suffering; (2) treat severely, rigorously, or sharply.” [Nivert at *2, quoting II Oxford English Dictionary at 1216-1217].
State v. Brown, 9th Dist. Summit No. 23737, 2008-Ohio-2956, ¶ 12. Examples of torturing or cruelly abusing a child include
1973 Legislative Service Commission Note,
{¶10} A criminal attempt occurs when a person purposely or knowingly “commits an act that constitutes a substantial step toward the commission of an offense.” State v. Carson, 9th Dist. Summit No. 26900, 2013-Ohio-5785, ¶ 26, citing State v. Woods, 48 Ohio St.2d 127 (1976), paragraph one of the syllabus;
{¶11} D.B. testified that Brown is her father, but she had limited contact with him before the age of ten or eleven. Once she got a littlе older, Brown started spending more time with her, taking her on shopping trips with her two half-sisters (i.e., Brown’s other daughters)
{¶12} D.B. testified that Brown expressed an interest in teaching her how to have oral sex and vaginal intercourse. When shе asked him whether he only meant to explain those concepts or meant to show her, he indicated that he meant to show her. D.B. stated that Brown repeatedly broached the subject of the sex lessons and asked if she was ready to receive them, always waiting until they were alone together to ask. Shе testified that he continued to do so on a regular basis until she left Ohio to live with her grandparents. During that time period, Brown only occasionally discussed the sex lessons on the phone, indicating that D.B. had “missed out on [her] chance to learn * * *.”
{¶13} In June 2016, when D.B. would have been seventeen years old, a fight with her grandparents рrompted her to return to Ohio. In need of a place to live, she grudgingly accepted Brown’s offer of room and board and stayed with him and her half-sisters. She testified that Brown would drive her to work each day, would pick her up at the end of her shift, and would sometimes meet her on her lunch breaks. Whenever they were alone, Brown would discuss the sex lessons and ask whether D.B. was ready to learn how to have oral sex and sexual intercourse. She testified that Brown never actually touched her during their discussions, but was serious about the lessons. Brown emphasized that the lessons were necessary to ensure her future success becausе D.B. had no other skills, came from a family of “hoes,” and would not amount to anything more than that.
{¶14} One July evening, D.B. spent the night with a relative of whom Brown did not approve. Because her cell phone battery had died, she did not call Brown to inform him of her whereabouts. When she returned home the next day, Brown “started flipping out” and grounded
{¶15} D.B. felt disgusted that Brown was essentially blackmailing her for sex. Though he never touched her in a sexual manner while she lived with him, she testified that she “felt like he would eventually try to either force [her] to take the sex lessons or just * * * [keep her] grounded forever until [she] did it.” Moreover, the few family members that she tоld about the sex lessons did not believe her. Deciding that she needed proof, D.B. used her cell phone to record several conversations with Brown. Once she had the recordings, she shared them with her grandmother and the police.
{¶16} The State introduced D.B.’s cell phone recordings at trial. The recordings cаpture Brown speaking to D.B. about the sex lessons and confirming that they would enact the lessons together. During one recording, D.B. can be heard asking Brown whether he meant for them to actually have sex, and Brown can be heard responding: “Best damn punishment. It’s just a goddamn lesson. There’s nothing to it.” D.B. can then be heard informing Brown that what he is suggesting amounts to incest, and Brown can be heard sighing and replying: “You can look at it how you want.” Brown then assures D.B. that he has had many girlfriends in the past and the best lovers among them had all been taught how to have sex by their parents.
{¶17} Brown argues that his convictions are based on insufficient evidence because mere words cannot constitute an attempt. As to attempted sexual battery, he argues that there was no evidence he ever touched D.B. in a sexual manner. As to attempted child endangering, he argues that “sexual conduct does not constitute torture or cruel abuse.” Because he only
{¶18} Having considered the evidence in a light most favorable to the prosecution, this Court must conclude that the State failed to carry its burden of рroduction on Brown’s attempt convictions. See Jenks, 61 Ohio St.3d 259 at paragraph two of the syllabus. As noted, the crime of attempt requires a defendant to have taken “a substantial step toward the commission of an offense.” Carson, 2013-Ohio-5785, at ¶ 26. The intent to commit a crime is not enough. Dapice, 57 Ohio App.3d at 104. Nor is “mere preparation.” Id. Instead, the defendant must have engaged in conduct “‘strongly corroborative of [his] criminal purpose.’” Group, 98 Ohio St.3d 248, 2002-Ohio-7247, at ¶ 95, quoting Woods, 48 Ohio St.2d 127 at paragraph one of the syllabus. Because the Statе failed to set forth evidence that Brown took any substantial step toward the commission of either of his offenses, his convictions cannot stand.
{¶19} D.B. readily admitted that Brown never touched her in a sexual manner at any point during the indictment period. Nor was there evidence that he paired his verbal expressions of intent with any other significant conduct, such as ordering her to remove her clothing. See, e.g., State v. Powell, 49 Ohio St.3d 255, 261 (1990). While D.B. worried that Brown might eventually force her to have sex, he never actually tried to do so. Moreover, we cannot agree with the State’s contention that the grounding Brown imposed upon D.B. constituted a substantial stеp in support of his attempted sexual battery conviction. The record reflects that he grounded D.B. because she spent the entire night elsewhere and failed to call home. Even if he indicated that she would remain grounded until she had sex with him, any purported nexus between the grounding and any future sexual conduct thаt might occur was both tenuous and speculative. At best, Brown’s insistence that D.B. would remain grounded until she was ready to
{¶20} Likewise, we cannot agree that the grounding or Brown’s criticisms of D.B. served as evidence of аttempted torture or cruel abuse for purposes of attempted child endangering. See
Assignment of Error III
Count One fails to state an offense because attempted sexual battery where the object offense is a violation of
Assignment of Error IV
The guilty verdict in Count Two is for a first-degree misdemeanor.
Assignment of Error V
The trial court erred when it refused to give the Defendant’s proposed jury instruction on “attempt.”
Assignment of Error VI
The trial court erred when it permitted the prosecutor to tell the jury that proof beyond a reasonable doubt does not require one hundred percent certainty[.]
Assignment of Error VII
The convictions are against[]the manifest weight of the evidence.
{¶22} Given our resolution of Brown’s first and second assignments of error, his remаining assignments of error are moot, and we decline to address them. See App.R. 12(A)(1)(c).
III.
{¶23} Brown’s first and second assignments of error are sustained. The judgment of the Lorain County Court of Common Pleas is reversed, and the cause is remanded for further proceedings consistent with the foregoing opinion.
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 Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stаmped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
JULIE A. SCHAFER
FOR THE COURT
TEODOSIO, P. J.
CONCURS.
HENSAL, J.
CONCURRING IN PART, AND DISSENTING IN PART.
{¶24} I disagree with the majority’s conclusion that the State presented insufficient evidence to support Mr. Brown’s conviction for attempted child endangering. The evidence indicates that Mr. Brown’s conduct – including his demeaning comments, his daily insistence
APPEARANCES:
STEVEN L. BRADLEY and MARK B. MAREIN, Attorneys at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and LINDSEY C. POPROCKI, Assistant Prosecuting Attorney, for Appellee.