STATE OF OHIO v. LARRY BROWN
C.A. No. 20CA011618
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
July 26, 2021
[Cite as State v. Brown, 2021-Ohio-2540.]
CALLAHAN, Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 16CR094523
Dated: July 26, 2021
CALLAHAN, Judge.
{1} Appellant, Larry Brown, appeals his convictions by the Lorain County Court of Common Pleas. This Court affirms.
I.
{2} On July 14, 2016, after receiving a report that a man may have been shot in a residence, police officers responded to a home on West 9th Street in Lorain to perform a safety check. The officers found the body of L.S., who had died as a result of a single gunshot wound above his left clavicle. L.S.‘s brother, S.F., identified Mr. Brown as the shooter. Mr. Brown fled Ohio and was arrested in Baltimore, Maryland after seeking medical attention for an unrelated injury. He was charged with two counts of murder in violation of
{3} Mr. Brown was arraigned on September 29, 2016. On October 7, 2016, Mr. Brown waived his speedy trial rights in writing on a form journal entry, and the first pretrial conference was continued. Numerous such forms appear in the record between that time and November 5, 2018, when the State of Ohio moved to schedule a jury trial. Some of the forms were signed by Mr. Brown; others indicated through counsel that he waived his speedy-trial rights. In response to the State‘s motion, the trial court set a trial date of March 20, 2019. Five days before the trial date, defense counsel moved to continue the trial, citing counsel‘s need for an emergency medical procedure. The trial court granted the motion and selected August 19, 2019, as the new trial date. Other pretrial conferences were conducted between counsel in the interim, documented by further form entries that contain the same language regarding waiver of speedy trial. Two were signed by Mr. Brown; a third indicated that Mr. Brown waived his speedy trial rights through counsel.
{4} On the date of trial, defense counsel moved to withdraw, and Mr. Brown appeared in court to read a letter addressed to the trial court in which he requested new counsel. The trial was continued, and on August 20, 2019, the trial court granted the motion to withdraw, finding that the relationship between counsel and Mr. Brown had deteriorated to a degree “that they [could] not adequately work together during a trial[,]” and appointed new counsel. The trial court subsequently continued the trial to January 27, 2020, upon request of the defense. On September 12, 2019, however, the State moved the trial court to recuse from the case, arguing that the trial court judge had ex parte contact with a potential witness. The trial court granted the motion.
{5} On October 15, 2019, the newly appointed defense counsel also moved to withdraw, citing his own significant health issues. The trial court granted the motion, appointed a
{6} A jury found Mr. Brown guilty of all charges and firearm specifications. The trial court merged the murder and felonious assault convictions with their accompanying firearms specifications for purposes of sentencing, and the State elected to proceed to sentencing on the murder conviction under
{7} Mr. Brown appealed, asserting six assignments of error. His assignments of error are rearranged to facilitate discussion.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED IN DENYING MR. BROWN‘S MOTION TO DISMISS IN VIOLATION OF
[R.C.] 2945.71 AND[R.C.] 2945.72 AS WELL AS THE UNITED STATES AND STATE OF OHIO CONSTITUTIONS AS MR. BROWN‘S RIGHT TO A SPEEDY TRIAL WAS VIOLATED.
{8} In his first assignment of error, Mr. Brown argues that the trial court erred by denying his motion to dismiss the indictment because his speedy trial rights had been violated. Specifically, Mr. Brown argues that he did not knowingly, voluntarily, and intelligently waive his right to a speedy trial on some of the dates reflected on the form journal entries in the record and
{9} Ohio‘s speedy trial statute,
{10} A defendant who has waived speedy trial rights “is not entitled to a discharge for delay in bringing him to trial unless the accused files a formal written objection and demand for trial, following which the state must bring the accused to trial within a reasonable time.” O‘Brien at paragraph two of the syllabus. See also State v. Bray, 9th Dist. Lorain No. 03CA008241, 2004-Ohio-1067, 8. A waiver of speedy trial rights can be of limited or unlimited duration, but when a written waiver fails to specify an expiration date, it constitutes an unlimited waiver. Bray at 8, citing State v. Kovacek, 9th Dist. Lorain No. 00CA007713, 2001 WL 577664, *4 (May 30, 2001), citing O‘Brien at paragraph two of the syllabus. An unlimited waiver is not effective only until a defendant‘s next scheduled court date. State v. Skorvanek, 9th Dist. Lorain No. 08CA009399, 2009-Ohio-3924, 18, citing State v. Smith, 9th Dist. Lorain No. 98CA007144, 1999 WL 1260872, *3-4 (Dec. 22, 1999).
{12} There is also no evidence from which this Court could conclude that Mr. Brown formally objected to the delay and demanded a trial. See O‘Brien at paragraph two of the syllabus; Bray at 8. To the extent that Mr. Brown addresses this matter in his brief, it appears that his argument is that he was unable to do so because he was represented by counsel, with whom he had a disagreement. Mr. Brown‘s actions in other respects undermine this argument, however: he wrote a letter to the trial court which he read aloud in court upon his first attorney‘s motion to withdraw, and he authored the motion to dismiss that was ultimately filed. To the extent that he argues that any formal objection would certainly have been rejected by the trial court as an act of hybrid representation, that argument is also not well-taken. See, e.g., State v. Baker, 7th Dist. Mahoning No. 19 MA 0080, 2020-Ohio-7023, ¶ 103, 105, 108-121 (noting that a pro se motion by a represented defendant who objected to pretrial delay and asserted speedy trial rights was
{13} In addition to his arguments related specifically to speedy trial rights, Mr. Brown‘s first assignment of error appears to assert that he was denied due process because he was not present for pretrial hearings before his first attorney withdrew. The number of pretrial conferences at which Mr. Brown was apparently not in attendance is of concern to this Court, particularly given the fact that the record does not reflect that he waived attendance, through counsel or otherwise. See State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, ¶ 103, citing State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, ¶ 144; Frazier at ¶ 145.1 Nonetheless, the absence of an accused only results in prejudicial error when it prevents “a fair and just hearing.” Frazier at 139, quoting Snyder v. Massachusetts, 291 U.S. 97, 107-108 (1934). “[S]peculative claim[s]” are not sufficient to demonstrate prejudicial error. See, e.g., Hale at ¶ 102 (rejecting a defendant‘s argument that his presence at pretrial conferences would have alerted him to ineffective assistance of trial counsel); Frazier at 142 (noting that a defendant‘s absence was not prejudicial when the subjects discussed in chambers were “legal or scheduling issues within the professional competence of counsel.“). Mr. Brown has not demonstrated that his presence at the pretrials was necessary for a fair and just hearing.
{14} Mr. Brown‘s first assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING THE STATE TO RECALL ITS EXPERT WITNESS TO CHANGE HIS TESTIMONY.
{16}
{17} As an initial matter, this Court notes that R.W. did not testify as an expert, but as the custodian of records for T-Mobile. See generally
{18} According to that second document, service code 2A means “Call Forwarding on No Reply” and service code 29 means “Call Forwarding on Mobile Subscriber Busy.” During his testimony, R.W. reversed these definitions, explaining that service code 2A is assigned when a mobile user takes some action to refuse a call, such as swiping to ignore it, while service code 29 is assigned when a call is forwarded to voice mail with no action by the recipient. With respect to L.S.‘s cellular phone records, therefore, R.W. testified that a number of calls to L.S.‘s phone were actively rejected and forwarded to voicemail at a time after L.S. had been shot and his cellular phone was believed to be unattended in his residence or in police custody.
{19} The State realized the error in R.W.‘s testimony after he had testified and initiated contact with R.W. to clarify the meaning of the service codes. Once T-Mobile confirmed that an error had been made, the State moved to recall R.W. for the purpose of correcting his testimony on that point. When he was recalled, R.W. explained that he had “inadvertently transposed the numbers in [his] head and just flip-flopped the explanation.” R.W. also corrected his testimony regarding the calls that were received by L.S.‘s cellular phone during the time period in question.
{20} R.W. was recalled not for purposes of addressing his credibility, as Mr. Brown maintains, but because his previous testimony contained an inadvertent mistake that led to the misinterpretation of State‘s Exhibit AJ and to potential confusion between his testimony and the
ASSIGNMENT OF ERROR NO. 4
THE VERDICT IN THIS CASE IS AGAINST THE SUFFICIENCY OF THE EVIDENCE AND SHOULD BE REVERSED BECAUSE IT VIOLATES THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND ARTICLE I, SECTION 10 OF THE CONSTITUTION OF THE STATE OF OHIO.
{21} In his fourth assignment of error, Mr. Brown argues that his convictions are not based on sufficient evidence. This Court does not agree.
{22} “Whether a conviction is supported by sufficient evidence is a question of law that this Court reviews de novo.” State v. Williams, 9th Dist. Summit No. 24731, 2009-Ohio-6955, ¶ 18, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). The relevant inquiry is whether the prosecution has met its burden of production by presenting sufficient evidence to sustain a conviction. Thompkins at 390 (Cook, J., concurring). For purposes of a sufficiency analysis, this Court must view the evidence in the light most favorable to the State. Jackson v. Virginia, 443 U.S. 307, 319 (1979). We do not evaluate credibility, and we make all reasonable inferences in favor of the State. State v. Jenks, 61 Ohio St.3d 259, 273 (1991). The evidence is sufficient if it allows the trier of fact to reasonably conclude that the essential elements of the crime were proven beyond a reasonable doubt. Id.
{23} Mr. Brown was convicted of murder in violation of
(A) No person shall purposely cause the death of another or the unlawful termination of another‘s pregnancy.
(B) No person shall cause the death of another as a proximate result of the offender‘s committing or attempting to commit an offense of violence that is a felony of the first or second degree and that is not a violation of section 2903.03 or 2903.04 of the Revised Code.
{24}
(A) No person shall knowingly do either of the following:
(1) Cause serious physical harm to another or to another‘s unborn;
(2) Cause or attempt to cause physical harm to another or to another‘s unborn by means of a deadly weapon or dangerous ordnance.
“A person acts knowingly, regardless of purpose, when the person is aware that the person‘s conduct will probably cause a certain result or will probably be of a certain nature.”
“The intent of an accused person dwells in his mind. Not being ascertainable by the exercise of any or all of the senses, it can never be proved by the direct testimony of a third person, and it need not be. It must be gathered from the surrounding facts and circumstances under proper instructions from the court.”
State v. Hanford, 9th Dist. Summit No. 29204, 2019-Ohio-2987, ¶ 8, quoting In re Washington, 81 Ohio St.3d 337, 340 (1998), quoting State v. Huffman, 131 Ohio St. 27 (1936), paragraph four of the syllabus.
{26} Officer Christian Franco responded to L.S.‘s residence for a welfare check in response to a report of a possible shooting. When he arrived, he found that the duplex was locked and lights were on. Through an open window, he heard music playing. Concerned that there could be an injured person inside, Officer Franco called out but received no response. He testified that he continued around the perimeter of the house to another open window, through which he saw the legs of an individual protruding from a bathroom doorway. Moving to the bathroom window, Officer Franco saw more of the body and noted the presence of blood. He testified that he decided to enter the residence and determined that the best point of entry would be a front window that could be accessed by removing an air conditioning unit.
{27} When he entered the house, Officer Franco noted no signs of struggle or forced entry. He testified that he moved from the front of the lower unit of the duplex toward the back. When he reached the back hallway, he saw the legs that he had seen from outside the residence.
{28} Detective Brian Denman was assigned to process the crime scene. He testified that he noted the presence of blood transfer stains on the floor inside the front door, on the carpet adjacent to the kitchen, and on the kitchen floor. He described what he noticed in the kitchen as partial footprints and noted that it appeared that someone had stepped in the blood pooled next to the victim‘s left side and walked through the residence. Detective Denman observed that the house was tidy and bore no indications of a struggle or forced entry. He testified that efforts to locate a shoe in the house with a tread pattern that matched the bloody footprints proved fruitless. Detective Denman noted that a 9 mm shell casing was recovered from the bathroom floor near L.S.‘s body, but that police were unable to locate a firearm in the residence. A photograph of the bathroom where police found L.S.‘s body depicts L.S. in a supine position with his head near the base of the toilet opposite the door. A red baseball cap can be seen on the floor near the toilet behind L.S.‘s body, and a scarf can be seen draped over the toilet itself.
{29} Sergeant Dennis Camarillo was the lead investigator of L.S.‘s death. He testified that the crime scene had been secured when he arrived. Sergeant Camarillo recalled that there were faint indications of blood transfer on the floor at the threshold to the house, in the living room, and on the carpet between the living room and kitchen threshold. He explained that as he
{30} Sergeant Camarillo testified that the pool of blood was notable because “the blood coming from the wound goes in one direction, over from the front of [L.S.]‘s body, chest, upper shoulder area, towards his back and onto the ground. * * * It all generated * * * from that source, and * * * it accumulated on the left side of his body.” He also explained the significance of the location where police recovered the spent shell casing:
[B]ecause it ejected to the right, * * * it was somewhere near - - either just inside the bathroom or at the threshold. And * * * since it ejects to the right, the firearm would have been fired, the casing would have ejected to the right, and in some fashion ended up in that corner where it was located. * * * [I]t indicates to me that the weapon was fired either right inside the bathroom or the, like the threshold of the bathroom door to the hallway. Right in that - - right by where [L.S.]‘s body was found.
Sergeant Camarillo explained that his training and experience led him to conclude that L.S. was shot “right where he was found laying.”
{31} Dr. Frank Miller, III, the Lorain County Chief Deputy Coroner, described the findings of L.S.‘s autopsy. He explained that L.S. died as a result of a single gunshot wound inflicted by a bullet that entered his body just above his clavicle on the left side, travelled toward the center of his body, and exited the left side of his back around the midline of his body.
{32} Dr. Miller explained that the single direction of L.S.‘s blood flow indicates that he had been laying on his back, as he was found, and Dr. Miller testified that his injuries were consistent with being shot by someone standing over him. He also noted that if L.S. had been moving around after sustaining the gunshot wound, he would have been actively bleeding in large amounts. He testified that L.S.‘s body bore numerous other abrasions and contusions that were sustained around the time of his death, including bruising between his skull and scalp in the area where his head rested on the bathroom floor.
{33} S.F., L.S.‘s younger brother, described the events that took place on the morning of the shooting. He explained that Mr. Brown was not related to him and L.S. by blood but had a close relationship with them nonetheless. S.F. recalled that Mr. Brown arrived at the apartment that S.F. shared with L.S. sometime during the night before the shooting. S.F. was aware that Mr. Brown always carried a firearm. Early on the morning of July 14, 2016, Mr. Brown awakened S.F. to go with him to pick up his young son. According to S.F., Mr. Brown wore “[s]ome kind of long gown, like dashiki like – it‘s a type [of] robe-looking thing.” Mr. Brown also wore a scarf and a hat. When they returned, according to S.F., L.S. was in the kitchen cooking. S.F. testified that Mr. Brown and L.S. began “talking jive back and forth[]” and “[h]orseplay[ing], like slap boxing, you know, just throwing punches at each other, just playing.” He explained that “they was
{34} After the two disappeared from his sight, S.F. heard the sound of a gunshot from the area of the hallway between the bathroom and his own bedroom. He recalled that, seconds later, Mr. Brown came out of the back hall with a look on his face that S.F. described as “[h]orrified” and “[c]razed, enraged[.]” S.F. testified that Mr. Brown came toward him carrying a gun that he had seen in Mr. Brown‘s possession on previous occasions. Mr. Brown no longer wore the hat or scarf, which S.F. identified as those found by the police near L.S.‘s body in the bathroom. S.F. explained that he left the apartment with Mr. Brown out of fear that he too would be shot and that he drove Mr. Brown‘s car away from the residence. He testified that once in the car, Mr. Brown said something along the lines of “I had to pop that motherfucker[.]” The two drove to a carwash, where S.F. noticed a bloodstain on the robe that Mr. Brown wore. S.F. testified that Mr. Brown removed the robe, placed it in a plastic bag, and left it in a garbage can. Surveillance video confirmed that after Mr. Brown discarded the robe, a gun was visible in the area of his waistband. Surveillance video from a nearby convenience store captured Mr. Brown buying a new shirt and changing into it. S.F. testified that Mr. Brown eventually entered a bank, where he secured a cash advance on his credit card. After S.F. entered the bank himself and hid under an employee‘s desk, Mr. Brown fled in his vehicle.
{35} These facts and circumstances surrounding the death of L.S.—including his statements and conduct after the crime was committed—viewed in the light most favorable to the State and with all inferences resolved in favor of the State, would allow the jury to reasonably conclude that it was Mr. Brown‘s specific intention to cause L.S.‘s death by inflicting a single
{36} Mr. Brown‘s convictions for murder are not based on insufficient evidence. His fourth assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 5
THE CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE 14TH AMENDMENT TO THE U.S. CONSTITUTION AND OF THE OHIO CONSTITUTION.
{37} Mr. Brown‘s fifth assignment of error argues that his convictions are against the manifest weight of the evidence. This Court does not agree.
{38} When considering whether a conviction is against the manifest weight of the evidence, this Court must:
review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). A reversal on this basis is reserved for the exceptional case in which the evidence weighs heavily against the conviction. Id., citing State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). As with other elements of a crime, “the credibility of witnesses and their degree of certainty in identifying the defendant are matters affecting the weight of the evidence.” State v. Flynn, 9th Dist Medina No. 06CA0096-M, 2007-Ohio-6210, at ¶ 12, citing State v. Gorgan, 9th Dist. Medina No. 1824, 1990 WL 1771, *1 (Jan. 10, 1990).
{39} In support of his manifest weight argument, Mr. Brown maintains that S.F. was not a credible witness, that the physical evidence did not support his convictions, and that the results of the police investigation were unreliable. Unlike his arguments supporting his fourth assignment of error, Mr. Brown‘s manifest weight argument is based on the proposition that he is not the person who shot L.S.
{40} S.F. described the events before and after L.S. was shot in detail. He testified that both he and L.S. had a good relationship with Mr. Brown before the events in question. S.F. recalled that he had not been aware that Mr. Brown would be visiting from his residence in Kentucky, but that he saw Mr. Brown‘s gold Mercedes Benz parked outside when he returned home early on the morning of July 14, 2016. He testified that it was Mr. Brown‘s idea for the two men to pick up his young son and that L.S. was still asleep when they left to do so. S.F. testified that he drove the car and Mr. Brown provided directions. According to S.F.‘s testimony, they picked up Mr. Brown‘s son at a location on West 20th Street, then drove to a location on South Broadway to visit a female friend of Mr. Brown‘s. There was no answer at the door at that location, and Mr. Brown testified that they then drove to a highrise apartment building in South Lorain to visit a man named G.C. Once there, according to S.F., Mr. Brown and his son went upstairs in the elevator while S.F. waited in the lobby. S.F. testified that after waiting between twenty and thirty minutes, Mr. Brown returned without his son, and they drove home.
{41} According to S.F., L.S. was awake and making food in the kitchen when they arrived. S.F. testified that L.S. was cooking grits, but during his cross-examination he noted that it was L.S.‘s pattern to cook grits rather than what he observed. S.F. recalled that he was in the
{42} S.F. testified that Mr. Brown told him to drive to a carwash and, once they arrived, that he noticed a bloodstain of three or four inches in diameter on Mr. Brown‘s robe. S.F. acknowledged that although he knew some people at the carwash, he did not tell them what happened because he did not have an opportunity. After Mr. Brown changed clothes at the carwash, the two men walked to a neighboring convenience store. S.F. testified that he did not flee at that time because he was afraid of being shot, and he explained that he pulled his cellular phone out because he wanted to call someone for help but ultimately did not do so. S.F. recalled that he and Mr. Brown walked back to the carwash and got into Mr. Brown‘s car again.
{43} At this point, Mr. Brown drove, and S.F. rode in the passenger seat. S.F. explained that, in an effort to escape, he told Mr. Brown that he had to use the bathroom and asked to drive to his mother‘s home. When no one answered the doorbell, S.F. got back in the car. Their next stop was a gas station in Lorain, where Mr. Brown went inside while S.F. remained in the car alone about twenty-five feet away. S.F. explained that he did not flee because he “[couldn‘t] outrun no bullet.”
{45} Mr. Brown argues that S.F.‘s testimony cannot be considered credible because he made statements that were inconsistent with respect to certain details and acknowledged that he lied during interviews with the police. S.F.‘s prior inconsistent statements and admitted falsehoods were, indeed, acknowledged at trial. The first officer who interviewed S.F. testified that he said Mr. Brown was covered in blood after the shooting. S.F. testified differently at trial, and he explained that if he had previously made this statement, it was false. He acknowledged that he had previously told police that he was outside the house when the shooting occurred and that he maintained this falsehood until his third interview with police on August 7, 2017. He admitted that he previously told his mother that he had crawled through the sunroof of Mr. Brown‘s car to escape when, in fact, he had tried to do so unsuccessfully. During his cross-examination, S.F. acknowledged that he omitted several details during his testimony—namely, that after leaving the carwash, he and Mr. Brown walked to a Family Dollar before going to the convenience store
{46} Sergeant Camarillo confirmed discrepancies in S.F.‘s prior statements. Inconsistencies notwithstanding, however, the testimony of other witnesses confirmed S.F.‘s testimony to a significant degree. One of S.F. and L.S.‘s neighbors testified that she had seen a gold vehicle parked at their house on the morning of July 14th and that she later saw a man she did not recognize wearing a robe that was white with green stripes. She identified Mr. Brown as the person she saw that morning. Another neighbor provided the police with security video footage that confirmed this testimony and S.F.‘s timeline of events from early that morning. Cellular telephone tower data from Mr. Brown‘s cellular phone was generally consistent with the timeline of the day‘s events provided by S.F., and surveillance video obtained from the carwash, convenience store, and bank confirmed details in S.F.‘s testimony. As Sergeant Camarillo observed, cellular phone extraction data was consistent with S.F.‘s testimony regarding the calls that he attempted to place after the shooting.
{47} Other witnesses confirmed S.F.‘s version of the events that happened once he entered the bank where Mr. Brown obtained a cash advance. T.G., a bank employee, testified that on the date in question, a man who appeared to be “extremely frightened, anxious, [and] in a hurry” entered the bank and hid under the desk in an office. T.G. recalled that the man said “he was kidnapped, there was a murder, to call the police.” T.D., a former sergeant with the Amherst Police
{48} This Court must “consider[] the credibility of witnesses” as part of our manifest weight review. Thompkins, 78 Ohio St.3d at 387, quoting Martin, 20 Ohio App.3d at 175. Nonetheless, this Court is mindful of the well-established principle that a trier of fact enjoys the best position to assess the credibility of witnesses. State v. Rivera, 9th Dist. Lorain No. 18CA011263, 2019-Ohio-62, ¶ 39, quoting State v. Johnson, 9th Dist. Summit No. 25161, 2010-Ohio-3296, 15. Although S.F.‘s testimony was inconsistent with his prior statements in some respects, this Court cannot conclude, as Mr. Brown suggests, that it must be disregarded entirely.
{49} Mr. Brown also argues that his convictions are against the manifest weight of the evidence because Sergeant Camarillo testified that the tread pattern on Mr. Brown‘s shoes did not match the bloody footprints at the scene. This fact is of limited value, however, because Sergeant Camarillo‘s testimony in this respect was qualified. Sergeant Camarillo testified that he submitted still-frame images from surveillance videos that captured the shoes that Mr. Brown was wearing after the fact to the FBI in the hope that they could provide useful information. The State stipulated “that the FBI could not make a match to the tread pattern[.]” Based on this stipulation, the defense did not move to admit the FBI report into evidence or obtain the testimony of the individual who performed the analysis. Consequently, there is no evidence in the record that would explain the meaning of this conclusion. In addition, the officers who processed the crime scene did not locate
{50} Mr. Brown‘s final argument is that his conviction is against the manifest weight of the evidence because the results of the police investigation are not worthy of confidence. Specifically, Mr. Brown argues that the police did not gather latent fingerprints or touch DNA evidence or inspect certain exterior areas surrounding the property, including garbage cans, vehicles, and the backyards of neighbors. The investigating officers, however, described the scope of their investigation and explained why it was appropriate under the circumstances. Compare State v. Dumas, 9th Dist. Medina No. 20CA0029-M, 2021-Ohio-1534, ¶ 32. Moreover, there is no requirement that a conviction be supported by the introduction of scientific evidence. See State v. Tyus, 9th Dist. Summit No. 29520, 2020-Ohio-4455, ¶ 56, citing State v. Finley, 2d Dist. Montgomery No. 19654, 2004-Ohio-661, 31-36.
{51} Given the evidence at trial, we cannot conclude that this is the exceptional case in which the evidence weighs heavily against the conviction. See Otten, 33 Ohio App.3d at 340, citing Martin, 20 Ohio App.3d at 175. Mr. Brown‘s fifth assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED WHEN IT FAILED TO PROPERLY INSTRUCT THE JURY OF THE LESSER INCLUDED OFFENSE OF RECKLESS HOMICIDE AND NEGLIGENT HOMICIDE, FOR COUNTS ONE AND TWO, MURDER AND THE LESSER INCLUDED OFFENSE OF ASSAULT AND NEGLIGENT ASSAULT, FOR COUNTS THREE AND FOUR, FELONIOUS ASSAULT.
{53} When determining whether one offense is a lesser included offense of another, courts must consider “whether one offense carries a greater penalty than the other, whether some element of the greater offense is not required to prove commission of the lesser offense, and whether the greater offense as statutorily defined cannot be committed without the lesser offense as statutorily defined also being committed.” State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, paragraph two of the syllabus. In doing so, courts must compare the elements of each crime, and “[a]n offense that includes an element that another offense lacks cannot be a lesser included offense of that other offense.” Owens, 162 Ohio St.3d 596, 2020-Ohio-4616, at ¶ 8.
{54} With respect to Mr. Brown‘s conviction for felony murder predicated on felonious assault, his argument that he was entitled to a jury instruction for reckless homicide fails under this analysis. Id. at ¶ 9-12. Because the felony murder statute imposes no additional mens rea apart from that required for the underlying offense, “reckless homicide[,]” which is the lesser offense, “has an element that felony murder lacks—recklessness with regard to the death of the victim.” Id. at ¶ 10-12. Mr. Brown‘s argument regarding negligent homicide and felony murder fails for the same reason.
{55} Mr. Brown also argues that the trial court erred by failing to instruct the jury on negligent and reckless homicide, with respect to his conviction for murder in violation of
{56} A jury instruction on a lesser included offense, however, is required only when the evidence presented at trial “would reasonably support both an acquittal on the crime charged and a conviction upon the lesser included offense.” (Emphasis added.) State v. Thomas, 40 Ohio St.3d 213 (1988), paragraph two of the syllabus. In making this determination, courts must view the evidence in the light most favorable to the defendant. State v. Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282, ¶ 37, citing State v. Campbell, 69 Ohio St.3d 38, 47-48 (1994). Mr. Brown‘s arguments are focused on the mens rea necessary to establish the offenses of which he was convicted. Consequently, he argues that the evidence at trial would reasonably support an acquittal on the murder and felonious assault charges because it does not demonstrate that he acted purposefully, with respect to murder, or knowingly, with respect to felonious assault.
{57} In support of his arguments, Mr. Brown points to S.F.‘s testimony that Mr. Brown and L.S. enjoyed a good relationship, that they were engaged in horseplay prior to the shooting, and that he did not witness the shooting itself. As discussed in connection with Mr. Brown‘s fourth assignment of error, however, the trial record is replete with evidence tending to demonstrate that Mr. Brown acted purposefully or knowingly. Even viewing the evidence at trial in the light most favorable to Mr. Brown, this Court cannot conclude that Mr. Brown could reasonably have been acquitted of murder or felonious assault. Because a jury instruction on a lesser included offense is only required when the evidence presented at trial “would reasonably support both an acquittal
{58} Mr. Brown‘s second assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 6
MR. BROWN DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT.
{59} In his sixth assignment of error, Mr. Brown argues that he received ineffective assistance of counsel in the trial court. Specifically, Mr. Brown attributes the delay in bringing his case to trial to the actions of counsel and argues that the delay deprived him of a fair trial. This Court does not agree.
{60} In order to demonstrate ineffective assistance of counsel, a defendant must show (1) deficiency in the performance of counsel “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and (2) that the errors made by counsel were “so serious as to deprive the defendant of a fair trial[.]” Strickland v. Washington, 466 U.S. 668, 687 (1984). A defendant must demonstrate prejudice by showing that, but for counsel‘s errors, there is a reasonable possibility that the outcome of the trial would have been different. Id. at 694. “A defendant‘s failure to satisfy one prong of the Strickland test negates a court‘s need to consider the other.” State v. Madrigal, 87 Ohio St.3d 378, 389 (2000), citing Strickland at 697.
{61} As discussed in this Court‘s disposition of his first assignment of error, Mr. Brown expressly waived his right to a speedy trial in writing and did not file a formal objection and demand for trial. See generally King, 70 Ohio St.3d at 160, citing O‘Brien, 34 Ohio St.3d 7 at paragraph one of the syllabus; Bray, 2004-Ohio-1067, at ¶ 8. The record does not demonstrate a deficiency in the performance of counsel in this regard. See generally Madrigal at 390-391 (noting
{62} Even if the pretrial delay could be attributed to deficient performance on the part of trial counsel, this Court could not conclude that the record demonstrates that Mr. Brown was prejudiced. Mr. Brown suggests that witnesses at trial must necessarily have suffered from lapses in memory over time and, consequently, that the result of his trial would have been different had he been brought to trial sooner. In support of his argument, he points to the testimony of a single witness regarding a single issue: during his cross-examination, Sergeant Camarillo testified that he submitted images of Mr. Brown‘s shoes to the FBI in the hopes of obtaining a match for the tread pattern, but Sergeant Camarillo did not at first recall that he had received a report from the FBI. As discussed in connection with Mr. Brown‘s fifth assignment of error regarding manifest weight, however, Sergeant Camarillo‘s testimony regarding the tread evidence was of limited value to the defense regardless.
{63} Mr. Brown‘s suggestion that this Court can extrapolate from this single facet of Sergeant Camarillo‘s testimony that his entire trial was tainted by faded memories is also not persuasive. Prejudice owing to ineffective assistance of counsel cannot be demonstrated by means of conjecture or speculation. Compare State v. McQuistan, 9th Dist. Medina No. 18CA0104-M, 2019-Ohio-3612, ¶ 25 (considering a speculative prejudice argument in the context of a petition for postconviction relief). There are difficulties inherent in proving prejudice as a result of fading memory over time. See generally State v. Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, ¶ 19-29 (discussing proof of “actual prejudice” in the context of preindictment delay). In this case, the testimony at trial was both extensive and detailed, and the exhibits were exhaustive.
{65} Mr. Brown‘s sixth assignment of error is overruled.
III.
{66} Mr. Brown‘s assignments of error are overruled. The judgment of the Lorain County Court of Common Pleas is affirmed.
Judgment affirmed.
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 stamped 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
Costs taxed to Appellant.
LYNNE S. CALLAHAN
FOR THE COURT
HENSAL, P. J.
TEODOSIO, J.
CONCUR.
APPEARANCES:
GIOVANNA V. BREMKE, Attorney at Law, for Appellant.
J. D. TOMLINSON, Prosecuting Attorney, and BRIAN P. MURPHY, Assistant Prosecuting Attorney, for Appellee.