State v. Brown , 2013 Ohio 2945 ( 2013 )

[Cite as State v. Brown, 2013-Ohio-2945.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
STATE OF OHIO C.A. No. 11CA0054
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
LONNIE T. BROWN COURT OF COMMON PLEAS
COUNTY OF WAYNE, OHIO
Appellant CASE No. 11-CR-0127
DECISION AND JOURNAL ENTRY
Dated: July 8, 2013
BAIRD, Judge.
{¶1} Appellant Lonnie Brown appeals his conviction and sentence in the Wayne
County Court of Common Pleas. This Court affirms in part, reverses in part, and remands for
correction of the sentencing entry.
I.
{¶2} Jamie Hout was found dead in her home. Brown was subsequently indicted on
one count of aggravated murder in violation of R.C. 2903.01(B), an unclassified felony; and one
count of murder in violation of R.C. 2903.02(A), an unclassified felony. The matter proceeded
to trial, at the conclusion of which the jury found Brown guilty of both counts. The murder
count was merged with aggravated murder as an allied offense of similar import for purposes of
sentencing. The trial court sentenced Brown to life in prison without parole. It further ordered
that upon completion of his prison term, Brown would be subject to a mandatory five-year period
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of post-release control. Brown filed a timely appeal in which he raises six assignments of error
for review.
II.
ASSIGNMENT OF ERROR I
THERE WAS INSUFFICIENT EVIDENCE TO CONVICT LONNIE T.
BROWN, JR. OF AGGRAVATED MURDER UNDER COUNT 1, AND THE
CONVICTION FOR AGGRAVATED MURDER WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
{¶3} Brown argues that his conviction for aggravated murder was not supported by
sufficient evidence and was against the manifest weight of the evidence. This Court disagrees.
Sufficiency of the evidence
{¶4} This Court recognizes:
An appellate court’s function when reviewing the sufficiency of the evidence to
support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind
of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is
whether, after viewing the evidence in a light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.
State v. Galloway, 9th Dist. No. 19752, 2001 WL 81257, *3 (Jan. 31, 2001), quoting
State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. The test for
sufficiency requires a determination of whether the State has met its burden of production
at trial. State v. Walker, 9th Dist. No. 20559, 2001 WL 1581570, *2 (Dec. 12, 2001); see
also State v. Thompkins, 78 Ohio St.3d 380, 390 (1997) (Cook, J., concurring).
{¶5} Brown was convicted of aggravated murder in violation of R.C. 2903.01(B),
which states in pertinent part: “No person shall purposely cause the death of another * * * while
committing or attempting to commit, or while fleeing immediately after committing or
attempting to commit, kidnapping, * * * [or] aggravated burglary * * *.” Pursuant to R.C.
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2901.22(A): “A person acts purposely when it is his specific intention to cause a certain result,
or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of
what the offender intends to accomplish thereby, it is his specific intention to engage in conduct
of that nature.”
{¶6} Because the State charged Brown alternatively with either aggravated burglary or
kidnapping as the underlying offense, for ease of analysis, this Court limits our review of the
underlying felony to aggravated burglary. The relevant portion of the aggravated burglary
statute as read to the jury without objection by either party is as follows: “No person, by force,
stealth, or deception, shall trespass in an occupied structure * * * when another person other than
an accomplice of the offender is present, with purpose to commit in the structure * * * any
criminal offense, if * * * [t]he offender inflicts, or attempts or threatens to inflict physical harm
on another[.]” R.C. 2911.11(A)(1). “Force” is satisfied by “any effort physically exerted.”
State v. Snyder, 192 Ohio App.3d 55, 2011-Ohio-175, ¶ 18-19 (9th Dist.). A criminal trespass
occurs when one “without privilege to do so * * * [k]nowingly enter[s] or remain[s] on the land
or premises of another[.]” R.C. 2911.21(A)(1). This Court recognizes that a privilege may be
revoked and that a privilege to enter or remain upon the premises terminates immediately upon
the commencement of an act of violence against the person granting the privilege. See State v.
Watson, 9th Dist. No. 14286, 1990 WL 80550, *2 (June 13, 1990).
{¶7} Jamie Hout was found naked and dead in her home on May 5, 2011, after Brown
fled from the home and yelled for a neighbor to call 911. Police arrived and secured the scene.
{¶8} Officer Michael Smith of the Orrville police department was dispatched to the
scene, where he found Brown outside crying and saying that Ms. Hout was in the living room.
Officer Smith found the victim lying naked in a pool of blood, with blood spatter throughout the
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living room. As other law enforcement personnel arrived on scene, Officer Smith spoke with
Brown outside. Brown told him that Ms. Hout had been depressed lately due to the anniversary
of her mother’s death. He explained that he and the victim had a father-daughter type
relationship and that they spoke every day. Brown explained that he last saw Ms. Hout two days
earlier at her home but that she left abruptly to “go turn tricks” for some Mexicans. When he had
not heard from Ms. Hout in two days, Brown went to her home only to find both the front and
back doors locked. Brown told Officer Smith that he found that odd because both doors only
lock from the inside, so he knew someone was inside. Brown said he peeked in a window, saw
the victim’s dog in a crate, got a stool, opened a back window, and crawled inside. Brown
reported that, when he saw the victim lying in the living room, he ran out the front door and
yelled for someone to call 911. Brown further reported that Ms. Hout called him about a week
earlier and told him that she had stolen some cocaine from some Guatemalans. Officer Smith
testified that he asked Brown if he would come to the police station to make a statement away
from the “chaos” of the scene, and Brown agreed. Officer Smith explained that Brown was not
under arrest and that he could leave at any time. Brown voluntarily spoke with Officer Smith
and Detective Joshua Hunt on May 5, 2011, and completed a written statement. At that time,
Officer Smith testified that the police were focusing their investigation on the Mexicans and
Guatemalans who had contact with the victim based on Brown’s statements. There is no dispute
that Ms. Hout used crack cocaine on a regular basis, often with Brown, and that she had a
reputation within the local Hispanic community of prostituting herself.
{¶9} George Staley, a special agent in the Bureau of Criminal Identification and
Investigation (“BCI”) crime scene unit, was called to the scene just before dark. The police set
up lighting inside the victim’s home, because there was no electricity service to the home. Mr.
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Staley was on the scene for 13-14 hours, documenting evidence. He testified that there was a lot
of blood and broken glass, including a broken bottle neck in a corner under a hutch in the living
room.
{¶10} Mark Kollar, another BCI special agent, testified that Detective Hunt briefed him
when he arrived on scene after dark. By that time, the police had reestablished electricity to the
home. Agent Kollar was informed of Brown’s statement that he entered the home through a rear
window, found the victim on the living room floor, and immediately exited through the front
door. Agent Kollar took numerous photographs of the scene and collected, packaged, and
labeled physical evidence during the 17 hours he spent at the scene. The agent identified a
picture of the rear window through which Brown entered the victim’s home. A stool was outside
beneath the window, while the screen was on the ground. Agent Kollar identified pictures of a
broken beer bottle neck found in a corner, a broken glass candle holder, a tooth among glass
shards, and the sleeve of a shirt curled up on the victim’s back. He further testified that
numerous blood swabs and fingerprints were taken from the scene. All evidence was transferred
to Detective Hunt.
{¶11} Detective Hunt testified that he was briefed at the scene regarding the
circumstances of the 911 call. He testified that he asked Brown to go to the police department to
give a statement, and Brown agreed. Detective Hunt testified that, after Officer Smith spoke
with Brown, he also questioned him on May 5, 2011, after informing him that he was not a
suspect and was free to go at any time. Based on the detective’s familiarity with the victim
coupled with Brown’s statement, Detective Hunt believed that the murder suspect was an
Hispanic male with a connection to drugs. He interviewed several Hispanic men associated with
Ms. Hout and obtained their DNA samples voluntarily. Further investigation, including a search
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of a residence of an Hispanic man with whom Ms. Hout had a relationship failed to produce any
evidence relevant to the murder.
{¶12} Back at the scene, Detective Hunt received all evidence collected by the BCI
agents and later secured it in the evidence room. He attended the victim’s autopsy two days later
where he received the victim’s rape kit which he sealed and secured in the evidence room. Much
of the evidence collected at the scene was later transported to BCI for analysis. On May 16,
2011, a representative from the BCI lab contacted Detective Hunt to inform him that two bloody
fingerprints positioned upside down on the broken beer bottle neck found at the scene matched
Brown. Moreover, the only DNA evidence found at the scene belonged to either the victim or
Brown. At that time, Detective Hunt believed there was probable cause that Brown killed Ms.
Hout. He called Brown and requested that he come to the station for a second interview. Brown
voluntarily appeared, at which time the detective arrested him, read him his Miranda rights, and
questioned him after Brown signed a waiver of his rights. Brown became angry when the
detective confronted him with the evidence against him.
{¶13} Dr. Dorothy Dean, the deputy medical examiner who performed the postmortem
examination on Ms. Hout, testified regarding the “tremendous damage” to the victim’s face,
forehead, and neck, including bruising, swollen eye lids and chin, numerous tears in the skin,
exposed skull bones, missing teeth, jaw and nose fractures, ligature marks all around her neck,
and a broken hyoid bone at the top of the throat. Dr. Dean opined that the victim’s injuries
presented two major types of causes of death, specifically, strangulation and severe blunt force
trauma to the head and neck, either of which could have been fatal. Dr. Dean further opined that
the nature of the ligature marks indicated that a broad, soft material, consistent with the sleeves
of a shirt found wrapped around the victim’s back at the scene, was used to strangle Ms. Hout.
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She further testified that a semi-circle indentation in the victim’s skull bone was consistent with
both the broken glass beer bottle neck and broken glass candle holder found at the scene. Dr.
Dean issued a report of findings, upon which Dr. Amy Joliff, the Wayne County coroner, relied
to conclude that the victim’s cause of death was strangulation, with contributing factors of blunt
and sharp force trauma.
{¶14} Dawn Limpert is a forensic scientist in the latent print unit at BCI. After citing
her education, training, experience, and other qualifications, the trial court qualified her as an
expert in the area of fingerprint/palm print processing and identification. Ms. Limpert then
explained that patent prints are visible prints left on surfaces by a substance, like paint, grease, or
blood, which coated the ridges of the print leaving behind an impression. She obtained
fingerprint cards for the victim, two men with a relationship to the victim, and Brown. She
testified that she examined the broken beer bottle provided by the Orrville police department
relevant to this case and was able to see fingerprints thereon which were sufficient for
comparison. Ms. Limpert testified that the ridge detail on the bottle appeared to have been made
by a transfer of blood from the fingers to the bottle. Based on her examination, education,
training, and experience, she concluded to a reasonable degree of scientific certainty that the
bloody fingerprints on the bottle neck belonged to Brown. Moreover, she concluded that the
placement of the fingerprints indicated that Brown held the bottle upside down, a position which
would have indicated the bottle’s use as a weapon.
{¶15} Lindsey Nelsen-Rausch is a forensic scientist in the forensic biology unit at BCI
who examines evidence for the presence of bodily fluids and collects samples for later DNA
testing. The trial court qualified her as an expert in that area. She testified that she examined
four pieces of evidence collected relative to Ms. Hout’s death, to wit: the neck of a broken beer
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bottle, a broken glass candle holder, the right shoe Brown was wearing at the scene, and Brown’s
eye glasses. Ms. Nelsen-Rausch testified that all items tested presumptively positive for blood.
She collected blood from each item for later DNA testing by an expert in that field.
{¶16} Brenda Gerardi was a forensic scientist in the DNA section of BCI at the time
relevant to the investigation of Ms. Hout’s death. She is now the lab supervisor. The trial court
qualified her as an expert in the area of identification of physiological fluids and DNA analysis.
Ms. Gerardi testified that she had DNA standards, i.e., known record samples of individuals, for
the victim, Brown, and 11 Hispanic men with known connections to the victim. She further had
the DNA samples collected by Ms. Nelsen-Rausch from the neck of the beer bottle, candle
holder, shoe, and Brown’s glasses. She testified that there was not enough blood from the
bottom of Brown’s shoe to make an identification. However, she opined that the blood on both
the broken glass candle holder and Brown’s glasses belonged solely to the victim. Ms. Gerardi
further opined that the blood on the broken beer bottle neck contained a DNA mixture from two
individuals consistent with profiles from the victim and an unknown male. She was able to
exclude all 11 Hispanic men as contributors from this blood profile, but she was not able to
exclude Brown as a minor contributor to the sample. She clarified that there was simply not a
large enough sample to make a clear finding with regard to Brown.
{¶17} Officer Jaime McGreal of the Orrville police department first met Brown outside
the victim’s home when she was dispatched to the scene. She testified that there was no way that
Brown could have reentered the crime scene where the victim was found. On May 24, 2011,
Officer McGreal collected a DNA sample from Brown after obtaining a search warrant. She
sealed and labeled the swabs and transported them to the police station where they were logged
into evidence.
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{¶18} Sergeant William Stitt of the Orrville police department also responded to the
scene within ten minutes. He testified that there was no time during which Brown could have
reentered the crime scene while the sergeant was there. Sergeant Stitt watched Brown leave the
scene with Officer Smith.
{¶19} Sonja Hall and Terry Miller lived across the back yard from Ms. Hout and both
knew her as a neighbor. Both Ms. Hall and Mr. Miller testified that they saw Brown at the
victim’s home on May 4, 2011, between 3:00 and 5:00 p.m. Brown spoke with someone in a
green jeep that pulled up to the victim’s house, while the victim watched from her doorway. Ms.
Hall testified that Ms. Hout then walked to the mailbox and retrieved her mail, and that Brown
and the victim walked to the side of the house together. Mr. Miller testified that he saw a deputy
and realtor at Ms. Hout’s home on May 1, 2011, because they wanted her to vacate the premises.
The realtor testified that he and a deputy spoke with Ms. Hout at her home on May 1, 2011,
about the pending eviction.
{¶20} Jeremy Kitchen was homeless when the victim took him into her home for a
period of time. He testified that he saw Ms. Hout at a drive-thru liquor store on May 2, 2011,
and that she told him that she and Brown were having some issues over money. Mr. Kitchen
testified that Ms. Hout asked him to come to her home in the evening of May 4, 2011, to talk
more about Brown. He testified that he arrived at the victim’s home around 10:00 p.m. to find
the back door locked, which was unusual because Ms. Hout always left that door unlocked.
When no one answered his knock on the door, he walked home.
{¶21} Lisa Corn knew both Brown and Ms. Hout. She was also friends with Chris
Linkous, a life-long friend of Brown. Ms. Corn testified that Brown occasionally spent the night
in her home because it was close to his place of employment and Brown did not drive. She
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testified that Brown appeared at her home around 8:00 p.m. on May 4, 2011, and asked to take a
shower. Ms. Corn testified that Brown spent 45 minutes to an hour in the shower, which caused
her discomfort because kidney problems necessitated her use of the sole bathroom in the home.
When she urged Brown to hurry, he told her to “pee outside.” Ms. Corn testified that Brown
spent the night in her home, got up in the morning and left, but came back because she was
supposed to accompany him to Ms. Hout’s home. When Chris Linkous arrived shortly
thereafter, Ms. Corn decided not to go with Brown.
{¶22} Ms. Corn testified that Brown sent her two letters from jail after his arrest. The
first contained kind sentiments towards her, and informed her that there were fingerprints on a
beer bottle found at the victim’s home and that Detective Hunt “had it out for him.” Brown
claimed in the first letter that he did not kill Ms. Hout, but he also asked Ms. Corn if she wanted
to write to a murderer. After Brown learned that she spoke with Detective Hunt, he wrote a
second letter to Ms. Corn in which he called her profane, vile names, and accused her of
“running [her] f***ing big mouth.”
{¶23} Chris Linkous confirmed that Brown arrived at Ms. Corn’s house during the
evening of May 4, 2011, and took a long shower. He testified that, although Brown and Ms.
Hout had a father-daughter relationship, Brown “jokingly * * * hit on” Ms. Hout, but she always
refused his advances.
{¶24} Reviewing the evidence in a light most favorable to the State, this Court
concludes that any rational trier of fact could have found the essential elements of the charge of
aggravated murder were proved beyond a reasonable doubt. See Jenks, 61 Ohio St.3d at
paragraph two of the syllabus The State presented evidence that Ms. Hout and Brown were
having issues about money and that Ms. Hout wanted to further confide in a friend about the
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situation. She was murdered before she had the opportunity to do so. On the night that Ms. Hout
was murdered, Brown appeared at the home of a friend and asked to take a shower. He spent 45
minutes to an hour in the shower that evening. The State presented evidence that Brown had Ms.
Hout’s blood on his fingers when he held a beer bottle upside down in a manner that would have
indicated its use as a weapon. The fingerprint expert testified that the substance leaving the
prints was wet, indicating the prints were left contemporaneously with the attack which resulted
in the spattering of the victim’s blood throughout the living room. Brown’s eye glasses tested
positive for the victim’s blood. The State presented sufficient evidence to establish that Brown
purposely caused Ms. Hout’s death.
{¶25} Brown admitted during his interviews with police to entering the victim’s home
through a back window, although he asserted that he found the victim dead at that time. There
was no explanation for why there was a stool outside the back window, although Brown admitted
to police that the stool facilitated his entry into the home. The trier of fact could reasonably have
taken into consideration Brown’s familiarity with the residence, the placement of the furniture,
his knowledge of the locking mechanisms on the interior doors and the fact that he used a stool
to enter the home through a window on the date of his “discovery” of Ms. Hout to infer that he
had likewise gained access to her residence on the day he killed her by climbing through the
back window. The jury had the opportunity to weigh the testimony of the next door neighbor
who testified to having seen Brown on the day of the murder, while Brown denied he was there.
Mr. Kitchen testified that Ms. Hout always left her back door unlocked, and there is no
explanation as to why she would have locked it on this occasion.
{¶26} Under these circumstances, the State presented sufficient evidence to show that
Brown entered the victim’s home through a back window by force or stealth with the purpose to
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attack her, thereby satisfying the elements of aggravated burglary. Accordingly, the State
presented sufficient evidence of the crime of aggravated murder.
Manifest weight
This Court has stated:
In determining whether a criminal conviction is against the manifest weight of the
evidence, an appellate 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).
Weight of the evidence concerns the tendency of a greater amount of credible
evidence to support one side of the issue more than the other. Thompkins, 78
Ohio St.3d at 387. Further when reversing a conviction on the basis that it was
against the manifest weight of the evidence, an appellate court sits as a “thirteenth
juror,” and disagrees with the factfinder’s resolution of the conflicting testimony.
Id.
State v. Tucker, 9th Dist. No. 06CA0035-M, 2006-Ohio-6914, ¶ 5. This discretionary power
should be exercised only in exceptional cases where the evidence presented weighs heavily in
favor of the defendant and against conviction. Thompkins, 78 Ohio St.3d at 387.
{¶27} Brown presented the testimony of four witnesses and also testified in his own
defense.
{¶28} Brown’s sister Jacqueline Crook testified that Brown was a father-figure for Ms.
Hout. She testified that she frequently drove Brown to Ms. Hout’s home, because he did not
drive, and that she did so the evening Ms. Hout was found dead. Ms. Crook testified that Brown
lived with their mother and that he was in their mother’s home around 6:30 p.m. on May 5, 2011,
but he left soon thereafter, saying he had to cut someone’s grass.
{¶29} Ms. Crook’s 19-year old daughter Dishannon Brown testified that she and her
mother returned to her grandmother’s home on May 5, 2011, between 6:30 and 7:00 p.m. and
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that Brown was there. Dishannon testified that she then drove Brown to Lisa Corn’s home
before he was supposed to cut someone’s grass. Instead of going to cut grass, however, they
took another detour to Ms. Hout’s home, because Brown wanted to check on her. Dishannon
testified that Brown went to the back of the victim’s home and ran out the front door about five
seconds later, and began rolling on the ground and yelling hysterically, “She’s gone.”
Dishannon testified that she had not seen Brown earlier in the day on May 5, 2011, and was not
sure if she had seen him at all the day before.
{¶30} Carolyn Brown is another of Brown’s sisters. She lived with her mother along
with Brown. Carolyn testified that Brown and the victim had a “great” relationship, wherein she
called him “dad” and he called her “squirrel.” She testified that her mother took Brown to work
on May 5, 2011, in the morning and picked him up around 3:00 p.m. She further testified that
Brown slept at home on May 3 and 4, 2011. He called home around 10:45 p.m. on May 3, 2011,
from the victim’s home requesting a ride home.
{¶31} Eva Brown testified that she is Brown’s mother and was his main means of
transportation. She testified that she drove him to and from work on May 5, 2011, and that he
later left her home around 7:00 p.m. to cut someone’s grass.
{¶32} Brown testified in his own defense. He testified that he had a “friends with
benefits” relationship with the victim’s mother before the mother died. He described his
relationship with the victim as “fine,” “my buddy,” and the “daughter I never had.” He admitted
that he had problems with drugs and that he and the victim smoked crack cocaine together on a
regular basis. He testified that he and the victim referred to one other as “enablers.” He denied
ever having sex with the victim or being her pimp.
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{¶33} Brown testified that he last saw Ms. Hout on May 3, 2011, when she asked him to
come over and help her pack because she was being evicted. Although the victim had two
“dates” scheduled that evening, she instead told Brown, “forget it, let’s kick it.” Brown testified
that Ms. Hout texted someone on his phone, left for about a half hour, and returned with crack
cocaine which they smoked together. Brown testified that the victim left for another half hour,
returned with more crack, and the two smoked again. He testified that the victim made another
call from his phone and the two of them walked to a big house where Brown sat while Ms. Hout
walked down an alley alone because Brown “might scare them off.” The two returned to the
victim’s home where “[w]e * * * did what we did and she got the mother load.” Brown got
another text on his phone which simply read, “$$$$.” The victim told him, “mo money, mo
money, mo money, mo money, I got to go.” Brown testified that he told her, “[B]aby, we had
enough. I had enough. I gotta go.” He asserted that he did not see Ms. Hout again until he found
her dead in her living room two days later. He denied being at her home on May 4, 2011, or
talking to someone in a green jeep outside her home on that day.
{¶34} Brown testified that Ms. Hout called him on April 28, 2011, to tell him that she
“f’ed up” because she had stolen drugs from some Guatemalan or Mexican men. He testified
that she sounded scared and he became scared for her and himself, although he did not explain
why.
{¶35} Brown denied taking a long shower at Lisa Corn’s home on May 4, 2011. He
claimed the shower occurred a week earlier. He admitted sending a mean-spirited and angry
letter to Ms. Corn from jail, but he testified that he was merely hurt because she had sold a $7500
LeBron James high school trading card that once belonged to Brown.
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{¶36} Brown described the circumstances of his finding Ms. Hout’s body. His niece
took him first to Ms. Corn’s home where he dropped off some clothes and then to Ms. Hout’s
home. He knocked on the front door, and found it locked. He went to the back door and found it
locked too. Brown was surprised the doors were locked because he knew Ms. Hout was only
using the home as a “safe house” and that she was not staying there. Because Ms. Hout had
painted over all the windows in the home, Brown could not see inside. He saw a stool on the
patio and wondered why it was there because he knew he had left that stool in the kitchen. He
put the stool under the window, noticed the screen lying on the ground, “popped” the window
up, and crawled in backwards. He called out to a neighbor outside, asking, “do you think they’ll
get me for breaking and entering[?]” Brown then talked to and played with the dog inside the
home, and finally yelled for “Squirrel.”
{¶37} Brown testified that he made his way to the living room where he ran into a table,
fell, and saw the victim for the first time. When he got up, he realized he had something in his
hand, but he was unable to see it because it was dark in the room due to the painted windows.
Brown threw the object in his hand and he rolled to the front door, hitting a piece of tin from
carpeting he and the victim had pulled up. He thought he might have touched the victim’s hand.
He admitted he had blood on his hand and eye glasses although his explanation was not clear.
Brown then testified that it took him a while to open the front door because he was “shaking like
a leaf.” When he finally got to the porch and down the steps, he tried to call 911 but kept hitting
the wrong numbers, so he yelled out for someone else to call.
{¶38} Brown testified that he still had blood on him and his shirt when he went to the
police station to give a statement. At that time during direct examination, defense counsel asked
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Brown “Why didn’t you tell the cops this?” Brown responded that he was a “wreck” at the time.
Brown concluded by denying having killed the victim or knowing who did.
{¶39} On cross-examination, Brown admitted that the told the police he did not touch
anything at the scene. After clarifying, without objection by defense counsel, that he did not tell
the police about tripping and touching things in the house because he was upset, he testified that
his comments to police that he had not touched anything really meant that he did not take any
pictures of the scene or check out anything. Brown admitted throwing a beer bottle neck after he
fell and the bottle neck struck his hand. He claimed he got splinters as a result. Finally, he
denied having a cocaine addiction, and claimed that he only used the drug if he had money, and
that he never stole money to feed his drug habit.
{¶40} On redirect examination, Brown admitted that he and the victim had their
differences but asserted there was never any violence in their relationship.
{¶41} The State recalled Officer Jaime McGreal on rebuttal. She testified that she
executed the search warrant at Brown’s home, the home he shared with his mother and sister.
The officer testified that the three women used a calendar in the home to clarify dates, and that
the officer was unable to get conclusive dates and times regarding when Eva Brown picked up
her son or where Brown was during the period of May 3-5, 2011.
{¶42} This Court will not overturn the trial court’s verdict on a manifest weight of the
evidence challenge only because the trier of fact chose to believe certain witnesses’ testimony
over the testimony of others. State v. Crowe, 9th Dist. No. 04CA0098-M, 2005-Ohio-4082, ¶ 22.
A thorough review of the record indicates that this is not the exceptional case where the evidence
weighs heavily in favor of Brown. The weight of the evidence supports the conclusion that
Brown either used stealth to enter Ms. Hout’s home, or forced his way into her home through the
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back window, in either event for the purpose of harming her. The two had been having
difficulties over money, and those issues were significant enough that the victim informed a
friend. While Brown and the victim spent an evening smoking crack cocaine, Brown got a text
message on his phone that merely displayed four dollar signs. It is reasonable to believe that that
was a message demanding payment. The sole means of income ascribed to Ms. Hout was from
prostitution, while Brown had only recently started a job, so it is unclear how the two paid for the
crack they regularly smoked together. Brown admitted being scared for himself when Ms. Hout
told him she had stolen some drugs from some Hispanics. It is not unreasonable to believe that
these issues caused a significant rift in Brown’s relationship with Ms. Hout, whom he might have
believed put his life at risk.
{¶43} Brown admitted to leaving a stool in the victim’s kitchen. The jury might have
inferred from all of the evidence that he locked the doors and used the stool to exit the kitchen
window after killing Ms. Hout, climbing out backwards, allowing him to pull the stool after him
and leave it outside, so he could use it later to reenter the home and “discover” the victim.
{¶44} Brown’s fingerprints were found in Ms. Hout’s blood on the neck of a beer bottle
that he had held upside down as if it were being used as a weapon. The deputy medical examiner
who performed the victim’s autopsy testified that the victim’s wounds were consistent with
having been made by a broken beer bottle. Brown admitted holding and throwing the beer bottle
neck. Because of the nature of the prints, however, the fingerprint expert testified that they
would have been transferred to the bottle neck from wet blood on Brown’s fingers, not blood that
had had a chance to dry.
{¶45} Finally, in this case, there were stark disparities between the testimony of
numerous State’s witnesses and Brown’s testimony. For example, Brown denied having seen the
18
victim for two days before he found her body, although two of the victim’s neighbors testified
that he was at her house during the late afternoon of May 4, 2011, before the victim was killed
later that night or very early the next morning. Multiple witnesses testified that Brown arrived at
their home late in the evening of May 4, 2011, and took an exceedingly long shower, while
Brown testified that they were mistaken about the date because he showered at his friend’s house
several days earlier. The jury could have believed the State’s witnesses’ testimony over that of
Brown in regard to these matters. In addition, the jury might have simply found incredible
Brown’s testimony about conveniently finding a stool outside the victim’s kitchen window on
the morning that he found her body, believing instead that he had placed the stool there himself
to gain entry to the victim’s home in order to kill her.
{¶46} Under these circumstances, Brown’s conviction for aggravated murder based on
the predicate offense of aggravated burglary was not against the manifest weight of the evidence.
Moreover, in light of that conclusion, this Court need not analyze the evidence regarding the
predicate offense of kidnapping. Brown’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE CONVICTION FOR COUNT 2, MURDER, WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
{¶47} Brown argues that his conviction for murder was against the manifest weight of
the evidence. Because of this Court’s resolution of the first assignment of error, the second
assignment of error has been rendered moot and we decline to address it. See App.R.
12(A)(1)(c).
ASSIGNMENT OF ERROR III
THE TRIAL COURT COMMITTED BOTH PLAIN ERROR AND
STRUCTURAL ERROR IN VIOLATION OF LONNIE BROWN’S RIGHT TO
19
DUE PROCESS BY TELLING THE JURY THAT HE DID NOT WANT HIS
MISSTATEMENT IN JURY INSTRUCTIONS TO RESULT IN AN APPEAL.
{¶48} Brown argues that the trial court prejudiced the jury by mentioning the potential
for an appeal during a curative instruction. This Court disagrees.
{¶49} When a defendant alleges that the trial court judge made improper comments
during the course of trial, five principles guide our analysis:
(1) the burden of proof is placed upon the defendant to demonstrate prejudice, (2)
it is presumed that the trial judge is in the best position to decide when a breach is
committed and what corrective measures are called for, (3) the remarks are to be
considered in light of the circumstances under which they are made, (4)
consideration is to be given to their possible effect upon the jury, and (5) to their
possible impairment of the effectiveness of counsel.
State v. Wade, 53 Ohio St.2d 182, 188 (1978), vacated on other grounds, Wade v. Ohio, 438 U.S.
911 (1978). When no objection to the comments is made at trial, our review is limited to plain
error. Id. at paragraph one of the syllabus.
{¶50} The context for Brown’s alleged error is the trial court’s oral instruction to the
jury, during which the judge misspoke about the burden of proof:
If you find that the Defendant proved beyond a reasonable doubt all the essential
elements of any one or more of the offenses charged in the separate counts in the
indictment, your verdict must be guilty as to such offense or offenses according to
your findings. If you find that the State failed to prove beyond a reasonable doubt
any one of the essential elements of any one or more of the offenses charged in
the separate counts in the indictment, your verdict must be not guilty as to such
offense or offenses according to your findings.
{¶51} At the conclusion of the jury instructions, the prosecuting attorney brought the
misstatement to the trial court’s attention during a sidebar. The trial court immediately offered a
curative instruction:
The Prosecutor just pointed out to me that I misread something and it’s pretty
crucial. He’s indicated that I said if the Defendant proves beyond a reasonable
doubt at some point. I have to make it absolutely clear the Defendant has to prove
absolutely nothing in this case. It’s the State’s burden of proof. So if the State
has proven its case beyond a reasonable doubt you would have to find the
20
Defendant guilty. If on the other hand the State has not proven its case beyond a
reasonable doubt you would have to find the Defendant not guilty. Again, the
Defendant does not have to prove anything in this case. I think that’s been made
clear throughout this case and my misstatement, I don’t want that to be reason for
some appeal later at some time. So that misstatement was incorrect and I hope all
of you understand I just misread it. I believe the written instructions are actually
correct * * * .
{¶52} Brown has challenged the curative instruction, arguing that it was plain error
because it drew attention to the fact that it was the prosecuting attorney who brought the
misstatement to light and because it referenced a possible appeal. According to Brown, the
curative instruction cast the prosecuting attorney in an unfairly favorable light, implied that the
judge assumed Brown would be found guilty, and communicated that assumption to the jury.
{¶53} In light of the considerations set forth in Wade, we are not persuaded by Brown’s
argument. The context of the trial court’s statement is of particular significance in this case,
following directly upon the judge’s earlier misstatement and contained within a detailed curative
instruction addressing the burden of proof. Within this framework, the judge’s statements did
not convey an undue preference for the prosecuting attorney or an assumption that the jury
would certainly find Brown guilty. Instead, the statements conveyed the intention to
meticulously correct a mistake so that the Brown would not be prejudiced and the proceedings
would not be tainted by error. Brown’s third assignment of error is overruled.
ASSIGNMENT OF ERROR IV
THE CONVICTION FOR AGGRAVATED MURDER VIOLATED LONNIE
BROWN’S RIGHT TO DUE PROCESS AND TO TRIAL BY JURY BECAUSE
THE VERDICT FORM DOES NOT STATE WHICH OF TWO POSSIBLE
PREDICATE OFFENSES HE WAS FOUND GUILTY OF. THIS WAS PLAIN
ERROR.
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{¶54} Brown argues that he was deprived of his right to due process because the trial
court failed to include a place on the verdict form for the jury to find Brown guilty of either of
the offenses underlying his aggravated murder charge. This Court disagrees.
{¶55} Brown did not object to the verdict forms, so our review is limited to plain error.
The existence of “error * * * [is] the starting point for a plain-error inquiry.” State v. Hill, 92
Ohio St.3d 191, 200 (2001). The Supreme Court of Ohio has rejected the position that due
process requires a jury to be informed of and to choose between predicate offenses. State v.
Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, ¶ 34-68 (holding that due process did not require
the jury to agree on what offense formed the predicate for an aggravated burglary conviction).
There is no error in the verdict forms in this case, and Brown’s fourth assignment of error is
overruled.
ASSIGNMENT OF ERROR V
LONNIE BROWN WAS DENIED DUE PROCESS OF LAW, AND THE
TRIAL COURT COMMITTED PLAIN ERROR IN VIOLATION OF U.S.
CONST. AMEND. V, XIV AND OHIO CONST. ART. I, SEC. 10, WHEN THE
PROSECUTOR WAS PERMITTED TO IMPEACH HIM BY USING
REFERENCES TO HIS PRIOR SILENCES.
{¶56} Brown argues that the prosecutor improperly used his post-Miranda silence
during a police interview to impeach his testimony on cross-examination. This Court disagrees.
{¶57} Because Brown did not object to the prosecutor’s questions during cross-
examination, our review is limited to plain error. See State v. Payne, 114 Ohio St.3d 502, 2007-
Ohio-4642, at ¶ 15-16. As noted above, the existence of “error * * * [is] the starting point for a
plain-error inquiry.” Hill, 92 Ohio St.3d at 200. In addition, “a defendant may not ‘take
advantage of an error that he himself invited or induced.’” State v. Rohrbaugh, 126 Ohio St.3d
22421, 2010-Ohio-3286, ¶ 10, quoting State ex rel. Kline v. Carroll, 96 Ohio St.3d 404, 2002-
Ohio-4849, ¶ 27.
{¶58} A defendant’s silence after receiving Miranda warnings cannot be used for
impeachment purposes. State v. Leach, 102 Ohio St.3d 135, 2004-Ohio-2147, ¶ 16, citing Doyle
v. Ohio, 426 U.S. 610, 618 (1976). When a defendant makes a voluntary statement to police but
testifies differently at trial, however, cross-examination is permitted “on any matters of
importance that were omitted from [the] statement.” State v. Blackman, 8th Dist. No. 88608,
2007-Ohio-4168, ¶ 22. “‘A contrary rule would foreclose any cross-examination, for fear that it
might reveal impeaching information intentionally withheld and inextricably interwoven with
that which was divulged.’” Id., quoting State v. Osborne, 50 Ohio St.2d 211 (1977), vacated on
other grounds sub nom Osborne v. Ohio, 438 U.S. 911 (1978).
{¶59} In this case, defense counsel reserved his opening statement until immediately
prior to Brown’s case in chief. Defense counsel set the tone of the defense by stating that “trial
is as much about what you don’t hear and don’t see as it very often is about what you hear and
see.” Later, during direct examination of Brown, defense counsel questioned Brown about the
blood that he testified had been on his hands and clothing at the scene. After Brown responded,
defense counsel asked him, “Why didn’t you tell the cops this?” Brown explained he did not tell
the police about the blood because he was a “wreck” at the time. On cross-examination, the
assistant prosecutor, without objection, merely followed up on defense counsel’s line of
questioning when he attempted to clarify Brown’s earlier testimony that he got blood on his
person and clothing after he tripped inside the victim’s house and that he did not tell the police
about the blood because he was upset at the time.
23
{¶60} Brown made statements on two occasions to the police. On May 5, 2011, he
voluntarily spoke with Officer Smith and Detective Hunt at a time when he was not a suspect
and not under arrest. He voluntarily made another statement to police on May 16, 2011, after he
was arrested, read his Miranda rights, and executed a written waiver of those rights.
Accordingly, all statements Brown made to the police were voluntary. At trial, for the first time,
Brown admitted that he had blood on his hands and clothing after exiting the victim’s home on
May 5, 2011. It was defense counsel who first questioned Brown about his failure to tell the
police about the blood. The State’s question on cross-examination merely clarified precisely the
same issue defense counsel raised. Under these circumstances, Brown cannot be heard to
complain of error, if any existed, that his attorney invited or induced. See Rohrbaugh at ¶ 10.
Brown’s fifth assignment of error is overruled.
ASSIGNMENT OF ERROR VI
THE TRIAL COURT’S SENTENCE WAS CONTRARY TO LAW BECAUSE
IT INCLUDED A TERM OF POST RELEASE CONTROL WHEN THE ONLY
CONVICTION WAS FOR AN UNCLASSIFIED FELONY. THE PRC
SANCTION NOTICE IS ALSO INCORRECT.
{¶61} Brown’s final assignment of error is that because he was only convicted of
aggravated murder, the trial court erred by imposing a term of postrelease control. This Court
agrees.
{¶62} “[A]n individual sentenced for aggravated murder * * * is not subject to
postrelease control, because that crime is an unclassified felony to which the postrelease-control
statute does not apply. R.C. 2967.28. Instead, such a person is either ineligible for parole or
becomes eligible for parole after serving a period of 20, 25, or 30 years in prison.” State v.
Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶ 36. The trial court erred by informing Brown that
postrelease control would be part of his sentence, and that portion of the sentencing order is void.
24
See State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, ¶ 26. Accordingly, this assignment of
error is sustained, and the matter is remanded to the trial court so that the sentencing entry may
be corrected. See State v. Evans, 8th Dist. No. 95692, 2011-Ohio-2153, ¶ 9-11.
III.
{¶63} Brown’s first, third, fourth, and fifth assignments of error are overruled. We
decline to address the second assignment of error. The sixth assignment of error is sustained,
and the matter is remanded for correction of the sentencing entry as it relates to the matter of the
imposition of postrelease control.
Judgment affirmed in part,
reversed in part,
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 Wayne, 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 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 equally to both parties.
WILLIAM R. BAIRD
FOR THE COURT
25
MOORE, P. J.
BELFANCE, J.
CONCUR.
(Baird, J., retired, of the Ninth District Court of Appeals, sitting by assignment pursuant to
§6(C), Article IV, Constitution.)
APPEARANCES:
CLARKE W. OWENS, Attorney at Law, for Appellant.
DANIEL R. LUTZ, Prosecuting Attorney, for Appellee.