State v. Brazina , 2017 Ohio 7500 ( 2017 )

[Cite as State v. Brazina, 2017-Ohio-7500.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, ) CASE NO. 15 MA 0191
)
PLAINTIFF-APPELLANT, )
)
)
VS. ) OPINION
)
ERIC BRAZINA, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Mahoning County,
Ohio
Case No. 14 CR 457
JUDGMENT: Affirmed in part. Reversed in part.
Remanded.
APPEARANCES:
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: Atty. Rhys B. Cartwright-Jones
42 N. Phelps St.
Youngstown, Ohio 44503
JUDGES:
Hon. Carol Ann Robb
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: August 30, 2017
[Cite as State v. Brazina, 2017-Ohio-7500.]
ROBB, P.J.
{¶1} Defendant-Appellant appeals his conviction entered in Mahoning
County Common Pleas Court for telecommunications harassment, impersonating a
peace officer, and disrupting public services. Three issues are raised in this appeal.
The first is whether there was sufficient evidence Appellant impersonated a peace
officer. The second is whether trial counsel was ineffective for failing to stipulate to
the prior telecommunication harassment convictions. The third is whether the trial
court made the requisite consecutive sentence findings at the sentencing hearing.
For the reasons discussed below, the verdicts are affirmed. However, the sentence
is reversed and the matter remanded for a limited sentencing hearing because the
trial court did not make the required consecutive sentence findings at the sentencing
hearing.
Statement of the Facts and Case
{¶2} In January 2014, Appellant pled guilty to seven counts of
telecommunication harassment. State’s Exhibit 9 and 10. In March 2014, he was
sentenced to community control for those convictions and released from the jail.
State’s Exhibit 10. During the pendency of that case, Appellant was being held in the
Mahoning County Jail. Deputy Alicia Hawkins was one of the deputies supervising
Appellant. During his stay in the Mahoning County Jail, Deputy Hawkins had to
reprimand Appellant because she caught him masturbating. According to Appellant,
he felt Deputy Hawkins treated him unfairly.
{¶3} On April 8, 2014, while working at the jail, Deputy Hawkins received a
telephone call on the jail’s telephone line. The phone call was from a “Brian Myers”
claiming to be a Struthers police officer and/or detective. Tr. 131-132. This person
told Deputy Hawkins somebody called and complained about her, and he was
investigating the complaint. Tr. 132. He asked to meet her on her lunch break. She
explained she was not permitted to leave on her lunch break, but told him she would
meet him at another time. Tr. 131-132. He indicated he would call back later to set a
time to meet. Tr. 132-133. She testified she was scared she would lose her job. Tr.
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132. She informed her supervisor about the call and wrote a report on the incident.
Tr. 133-134.
{¶4} “Brian Myers” called the jail again on April 22, 2014 and spoke to
Deputy Hawkins. Tr. 135. During this telephone call they set a date and time to
meet. Tr. 135. A meeting was arranged for the next day at the Plasma Center
across from the jail. Tr. 136. Deputy Hawkins notified her supervisors of the call and
wrote a report on the incident. Tr. 136. The Mahoning Valley Law Enforcement Task
Force was notified and they provided surveillance for the meeting. Tr. 137, 165.
“Brian Myers” did not show for the meeting. Tr.137, 165.
{¶5} On May 14, 2014 Deputy Hawkins received another telephone call
while working at the jail. This call was from “Kevin Bryant.” Tr. 139. “Kevin Bryant”
alleged to be from Trumbull County Administration or Trumbull County Sheriff’s
Office. Tr.139-140. He told Deputy Hawkins he was getting people together from
other jails to talk about jail operations. Tr. 139. He told her he would call back the
next day to give her the details of the meeting. Tr. 140. Deputy Hawkins recognized
his voice as the same person claiming to be “Brian Myers.” Tr. 139. She
immediately advised her supervisors of the telephone call and wrote a report. Tr.
140.
{¶6} The Task Force was called and Deputy Hawkins was given a recording
device to record the next phone call she received from this individual. Tr. 141.
{¶7} “Kevin Bryant” called the next day and Deputy Hawkins recorded the
conversation. Tr. 142; State’s Exhibit 11. He told her the meeting was going to take
place the following morning at the old Alberini’s in Niles and she was to wear dress
clothes and heels. Tr. 142; State’s Exhibit 11.
{¶8} The Task Force accompanied Deputy Hawkins to the meeting. Tr. 146.
No one appeared for the meeting.
{¶9} Deputy Hawkins and the officers working on the case went back to the
jail. Detective Anthony Murphy remembered another telecommunication harassment
case, showed Deputy Hawkins a picture of Appellant, and asked if she knew him. Tr.
147. Deputy Hawkins stated she knew him and relayed the incident at the jail when
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she had to reprimand him. Tr. 148-149. She also listened to telephone calls he
made from the jail. Tr. 150-151. She identified Appellant’s voice as “Brian Myers”
and “Kevin Bryant.” Tr. 151.
{¶10} Detective Murphy and Sergeant Larry McLaughlin called Appellant’s
probation officer and went to Appellant’s house. Appellant agreed to cooperate and
gave a statement. In his statement, Appellant explained he used a computer to make
the phone calls and he did these things to “mess” with Deputy Hawkins because of
how she treated him when he was in jail. State’s Exhibit 12. During the
conversation, Appellant admits to calling Deputy Hawkins only twice. However, in
discussing the incidents he referenced the call about the Struthers investigation and
asking her to meet him at the Plasma Center. State’s Exhibit 12. He also talked
about acting like he was somebody from Warren/Trumbull County Sheriff’s
Department and arranging a meeting at the old Alberini’s in Niles. State’s Exhibit 12.
{¶11} As a result, Appellant was indicted for four counts of telecommunication
harassment in violation of R.C. 2917.21(B)(C)(1)(2), fifth-degree felonies; four counts
of impersonating a peace officer in violation of R.C. 2921.51(E)(G), third-degree
felonies; and four counts of disrupting public services in violation of R.C.
2919.04(B)(C), fourth-degree felonies. 5/22/14 Indictment. The telecommunication
harassment charges were elevated to fifth-degree felonies because of his prior
telecommunication harassment convictions.
{¶12} Appellant pled not guilty, filed a motion to suppress his confession and
Deputy Hawkins’ voice identification, and filed a motion in limine to prevent the state
from referencing his prior telephone harassment convictions and similar unproven
conduct. 9/3/14 Motion to Suppress; 5/18/15 Motion to Suppress Voice Identification;
9/14/15 Motion in Limine. The motions were overruled. 5/19/15 J.E.; 8/21/15 J.E.
{¶13} The case proceeded to a jury trial. Appellant was found guilty on four
counts of telephone harassment, four counts of impersonating a peace officer, and
one count of disrupting public services. 9/18/15 Verdict forms; 9/28/15 J.E.
{¶14} Sentencing occurred on October 1, 2015. Appellant received an
aggregate sentence of 144 months (12 years). 11/9/15 J.E. Appellant received 12
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months for each telecommunication harassment conviction (counts 1-4), 36 months
for each impersonating a peace office conviction (counts 5-8), and 18 months for
disrupting public services (count 9). The sentences for counts 1, 5, and 9 ran
concurrently. The sentences for counts 2 and 6 ran concurrently. The sentences for
counts 3 and 7 ran concurrently. The sentences for counts 4 and 8 ran concurrently.
Each of those concurrent sentences ran consecutively to each other and
consecutively to any sentence imposed for violating community control. 11/9/15 J.E.
{¶15} Appellant timely appealed the conviction. 10/26/15 NOA.
First Assignment of Error
“Insufficient evidence supported Counts 7 and 8, Impersonating a Peace
Officer.”
{¶16} Counts 7 and 8 of the indictment allege Appellant violated R.C.
2921.51(E) on May 14 and May 15, 2014. On those dates, Appellant claimed to be
“Kevin Bryant.” Appellant argues the evidence introduced at trial did not establish
Appellant claimed to be a peace officer, rather the evidence indicated he claimed to
be from Trumbull County Administration. Accordingly, Appellant asserts there was
insufficient evidence to support his conviction because there was no evidence he
claimed to be a police officer on those dates.
{¶17} Sufficiency of the evidence is a question of law dealing with the legal
adequacy of the evidence. State v. Thompkins, 78 Ohio St. 3d 380, 386, 678 N.E.2d
541 (1997). It is the legal standard applied to determine whether the case may go to
the jury or whether the evidence is legally sufficient as a matter of law to support the
verdict. State v. Smith, 80 Ohio St. 3d 89, 113, 684 N.E.2d 668 (1997). In viewing a
sufficiency of the evidence argument, the evidence and all rational inferences are
evaluated in the light most favorable to the prosecution. State v. Goff, 82 Ohio St. 3d
123, 138, 694 N.E.2d 916 (1998).
{¶18} R.C. 2921.51 is titled “Impersonation of certain officers.” Division (E)
states, “No person shall commit a felony while impersonating a peace officer, private
police officer, federal law enforcement officer, officer, agent, or employee of the state,
or investigator of the bureau of criminal identification and investigation.” R.C.
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2921.51(E). The element of the offense Appellant focuses on is impersonating a
peace officer.
{¶19} In describing the phone calls occurring on May 14 and May 15, 2014,
Deputy Hawkins stated the caller “said he was Kevin Bryant from Trumbull County
Administration and he was getting people together from other jails to talk about how
we run – how our operations run at the jail.” Tr. 139. She also testified he said he
was from Trumbull County Sheriff’s Office. Tr. 140. In describing the last phone call,
she stated he pretended he was a Trumbull County officer; “This is the phone call
where he acts as a Trumbull County officer and he wants me to meet him, set up a
time and place to meet.” Tr. 144-145.
{¶20} Although Deputy Hawkins states “Kevin Bryant” indicated he was from
Trumbull County Administration, she also testified he acted as if he was a “Trumbull
County officer.” Peace officer is defined in R.C. 2921.51(A) as “a sheriff, deputy
sheriff, marshal, deputy marshal, member of the organized police department of a
municipal corporation, or township constable, who is employed by a political
subdivision of this state.” Thus, if Appellant was acting as a “Trumbull County officer”
then he was impersonating a peace officer. Given her testimony, viewed in the light
most favorable to the prosecution, there was sufficient evidence Appellant was
impersonating a peace officer in the May 14 and 15, 2014 phone calls.
{¶21} This assignment of error is meritless.
Second Assignment of Error
“Trial counsel was ineffective for failing to curtail admission of Brazina’s prior
criminal conduct.”
{¶22} Appellant contends counsel was ineffective for two reasons. First, he
asserts counsel should have stipulated to his prior convictions because a stipulation
would have prevented the jury from hearing testimony that Appellant had previously
committed this crime. The second alleged ineffective performance was allowing the
jury to hear about him masturbating while he was in the county jail.
{¶23} We review a claim of ineffective assistance of counsel under a two-part
test, which requires the defendant to demonstrate: (1) trial counsel's performance fell
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below an objective standard of reasonable representation; and (2) prejudice arose
from the deficient performance. State v. Bradley, 42 Ohio St. 3d 136, 141–143, 538
N.E.2d 373 (1989), citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052
(1984). Both prongs must be established; if the performance was not deficient, then
there is no need to review for prejudice and vice versa. State v. Madrigal, 87 Ohio
St.3d 378, 389, 721 N.E.2d 52 (2000).
{¶24} In evaluating the alleged deficiency in performance, our review is highly
deferential to counsel's decisions as there is a strong presumption counsel's conduct
falls within the wide range of reasonable professional assistance. Bradley, 42 Ohio
St.3d at 142–143, citing Strickland, 466 U.S. at 689. We are to refrain from second-
guessing the strategic decisions of trial counsel. State v. Carter, 72 Ohio St. 3d 545,
558, 651 N.E.2d 965 (1995). There are “countless ways to provide effective
assistance in any given case.” Bradley, 42 Ohio St. 3d at 142, citing Strickland, 466
U.S. at 689. Debatable trial strategy very rarely constitutes ineffective assistance of
counsel. See State v. Thompson, 33 Ohio St. 3d 1, 10, 514 N.E.2d 407 (1987).
{¶25} To show prejudice, a defendant must prove his lawyer's errors were so
serious that there is a reasonable probability the result of the proceedings would
have been different. Carter, 72 Ohio St. 3d at 558.
{¶26} As to whether trial counsel was ineffective for failing to stipulate to the
prior convictions for telecommunications harassment, the Ohio Supreme Court has
recently addressed a similar argument in the context of prior felony drug convictions.
State v. Spaulding, __ Ohio St.3d __, 2016-Ohio-8126, __ N.E.3d __, ¶ 153. The
Court found no merit with the Spaulding’s argument that trial court was ineffective for
not offering to stipulate to the prior convictions:
Spaulding next argues that his trial counsel were constitutionally
ineffective for not objecting to the journal entries or offering to stipulate
to his prior convictions. But even assuming that counsel should have
objected to the judgment entries or offered to stipulate to the
convictions, Spaulding has not established a “reasonable probability
that, but for counsel's unprofessional errors, the result of the
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proceeding would have been different,” Strickland, 466 U.S. at 694,
104 S. Ct. 2052, 80 L. Ed. 2d 674. If Spaulding had stipulated to his prior
offenses, the jury still would have learned that he had at least prior
felony drug convictions and prior domestic-violence convictions. See
R.C. 2923.13(A) (to convict, the state had to prove that Spaulding had
been previously convicted of a felony drug offense); R.C. 2919.25 (to
convict Spaulding of third-degree-felony domestic violence, the state
had to prove that he had been convicted of two or more prior domestic-
violence offenses). And other witnesses testified about the incidents
underlying the domestic-violence convictions.
Id.
{¶27} That reasoning is equally applicable here. Appellant cannot establish a
reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. Even if Appellant had stipulated to the prior
convictions, the jury would still have learned about the prior telecommunication
harassment offenses because the prior convictions were an element of the fifth-
degree felony telecommunication harassment charges.
{¶28} Furthermore, because the prior convictions were an element of the
offenses, the decision to not stipulate to the prior convictions and to acknowledge the
convictions in the defense’s opening statement also appears to be trial strategy. We
will not second guess trial strategy. Carter, 72 Ohio St. 3d at 558.
{¶29} As to the introduction of the masturbation incident, Appellant cannot
demonstrate a reasonable probability that had it not been introduced, the result of the
proceedings would have been different. The masturbation incident was introduced to
establish how Deputy Hawkins and Appellant knew each other. The masturbation
incident probably was not needed to show Appellant and the victim’s familiarity with
each other; familiarity could have been demonstrated by indicating Deputy Hawkins
supervised Appellant while he was in the county jail awaiting resolution of his other
telecommunication harassment charges. Her oversight of him was why she was
targeted. Regardless, even if the masturbation incident was not discussed, the result
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would have been the same; the evidence against Appellant was overwhelming.
Deputy Hawkins identified his voice. During his interview, Appellant admitted to
committing the crimes. He admitted he set up two different meetings, one at the
Plasma Center and the other at the old Alberini’s, and he admitted he posed as a
peace officer from Trumbull County and Struthers. Appellant’s second reason for
why counsel was ineffective fails.
{¶30} This assignment of error is meritless.
Third Assignment of Error
“The trial court erred in imposing consecutive sentences, totaling 12 years,
without making adequate findings under R.C. 2929.14 and that were otherwise
contrary to law.”
{¶31} Appellate courts review felony sentences under the standard set forth in
R.C. 2953.08(G)(2). State v Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, 59
N.E.3d 1231, ¶ 1. Under R.C. 2953.08(G)(2) an “appellate court may vacate or
modify a felony sentence on appeal only if it determines by clear and convincing
evidence that the record does not support the trial court's findings under relevant
statutes or that the sentence is otherwise contrary to law.” Id.
{¶32} When a trial court imposes consecutive sentences it must make the
required R.C. 2929.14(C)(4) findings at the sentencing hearing, and it must
incorporate those findings into the sentencing entry. State v. Bonnell, 140 Ohio St. 3d
209, 2014–Ohio–3177, 16 N.E.3d 654, ¶ 29. We have previously explained R.C.
2929.14(C)(4) requires a sentencing court to find: “(1) consecutive sentences are
necessary to protect the public from future crime or to punish the offender, (2) that
consecutive sentences are not disproportionate to the seriousness of the defendant's
conduct and to the danger he poses to the public, and (3) one of the findings
described in subsections (a), (b) or (c).” State v. Jackson, 7th Dist. No. 15 MA 93,
2016-Ohio-1063, ¶ 13. Subsections (a), (b), and (c) provide:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a
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sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of
the Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more
of the multiple offenses so committed was so great or unusual that no
single prison term for any of the offenses committed as part of any of
the courses of conduct adequately reflects the seriousness of the
offender's conduct.
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
R.C. 2929.14(C)(4)(a)-(c).
{¶33} In ordering consecutive sentences, the trial court made the following
statements:
The Court has considered the record, the oral statements made, and
the principles and purposes of sentencing under Ohio Revised Code
2929.11, and has balanced the seriousness and recidivism factors
under Ohio Revised Code 2929.12. Defendant waived his right to
presentence investigation. However, the Court will order a
postsentence investigation.
Court finds defendant was convicted by jury of four counts of
telecommunications harassment, all four being violations of Ohio
Revise Code 2917.21(B)(C)(1)(2), felonies of the fifth degree; to four
counts of impersonating a peace officer, violation of Ohio Revised Code
2921.51(E)(G), felonies of the third degree; and to one count of
disrupting public services, violation of Ohio Revised Code
2904.04(B)(C), felony of the fourth degree.
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The Court further finds defendant committed these acts while on
probation to another Common Pleas Court.
Court finds this was part of a course of conduct and that the
defendant’s criminal conduct demonstrates consecutive sentences are
necessary.
8/9/16 Tr. 11-12.
{¶34} Appellant contends these statements do not encompass all the required
findings. This court agrees.
{¶35} The trial court made a (C)(4)(a) finding; it found Appellant committed
the offenses while on community control for another offense.
{¶36} However, the trial court did not clearly make any of the other required
findings. It is acknowledged “magic” or “talismanic” words are not needed to impose
consecutive sentences. State v. Jackson, 7th Dist. No. 14 MA 99, 2015-Ohio-1365, ¶
10, citing State v. Bellard, 7th Dist. No. 12 MA 97, 2013–Ohio–2956, ¶ 17. “A word-
for-word recitation of the language of the statute is not required, and as long as the
reviewing court can discern that the trial court engaged in the correct analysis and
can determine that the record contains evidence to support the findings, consecutive
sentences should be upheld.” Bonnell, 2014–Ohio–3177 at ¶ 29. It is difficult to
discern from the record that the trial court engaged in the correct analysis.
{¶37} The trial court did state these crimes were part of a course of conduct
and consecutive sentences were necessary. This complied with a (C)(4)(b) finding
that “the harm caused by two or more of the multiple offenses so committed was so
great or unusual that no single prison term for any of the offenses committed as part
of any of the courses of conduct adequately reflects the seriousness of the offender's
conduct.” The statements may be a finding that “consecutive sentences are
necessary to protect the public from future crime or to punish the offender.”
However, those two statements alone are not sufficient to qualify as a protect the
public finding. Furthermore, the trial court made no finding which could qualify as a
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proportionality finding, i.e., consecutive sentences are not disproportionate to the
seriousness of the defendant's conduct and to the danger he poses to the public.
{¶38} Consequently, the record does not demonstrate compliance with R.C.
2929.14(C)(4); it is not discernable from a review of the sentencing hearing transcript
that the trial court engaged in the correct analysis and made the required findings at
the sentencing hearing. Bonnell, 2014–Ohio–3177 at ¶ 29. Appellant’s argument
has merit.
{¶39} Appellant’s second argument under this assignment of error is the
sentence is an abuse of discretion. Appellant asserts 12 years for “prank phone
calls” is beyond what is necessary to carry out the purposes and principles of felony
sentencing. He asserts no one was injured, there was no destruction of property,
and there was no calculated expense.
{¶40} This argument is meritless. We do not review a sentence for an abuse
of discretion. R.C. 2953.08(G)(2) (“The appellate court's standard for review is not
whether the sentencing court abused its discretion.”). Furthermore, trial courts have
broad discretion in making sentencing decisions; sentencing statutes and case law
indicate appellate courts defer to trial court’s sentencing decisions. State v. Rahab,
__ Ohio St.3d __, 2017-Ohio-1401, ¶ 10, citing Marcum, 146 Ohio St. 3d 516, 2016-
Ohio-1002 at ¶ 23 and R.C. 2953.08(G). Moreover, despite Appellant’s insistence to
the contrary, expenses were incurred because of these “prank calls,” and the crimes
caused the victim distress. The victim testified she was scared. Appellant knew the
victim was a Mahoning County Deputy and called her at the jail; the phone calls
occurred while she was at work supervising inmates. The Task Force investigated
the matter and provided surveillance for the arranged meetings. Additionally,
Appellant has a prior record of telephone harassment and had just begun serving
community control for his prior harassing telephone calls when he committed these
crimes. Consequently, for those reasons, Appellant’s abuse of discretion argument
lacks merit.
{¶41} In conclusion, this assignment of error has merit in part. The trial court
failed to make the necessary consecutive sentence findings at the sentencing
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hearing. The sentence is reversed and the matter remanded for a new sentencing
hearing. Appellant’s abuse of discretion argument, however, lacks merit.
Conclusion
{¶42} The first and second assignments of error lack merit. The third
assignment of error has merit. The verdict is affirmed, the sentence is reversed, and
the matter is remanded for a limited sentencing hearing regarding consecutive
sentences.
Donofrio, J., concurs,
DeGenaro, J., concurs.