State v. Brown ( 2016 )

[Cite as State v. Brown, 2016-Ohio-4573.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 2015-CA-21
:
v. : T.C. NO. 14CR267
:
MICHAELIAN A. BROWN : (Criminal appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 24th day of June, 2016.
...........
JANE A. NAPIER, Atty, Reg. No. 0061426, Assistant Prosecuting Attorney, 200 N. Main
Street, Urbana, Ohio 43078
Attorney for Plaintiff-Appellee
V. GAYLE MILLER, Atty. Reg. No. 0091528, 724 Clifton Drive, P. O. Box 10124, Dayton,
Ohio 45402
Attorney for Defendant-Appellant
.............
HALL, J.
{¶ 1} Michaelian Brown appeals from his convictions for trafficking in cocaine.
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Finding no error, we affirm.
I. Background
{¶ 2} Brown was indicted on three counts of trafficking in cocaine, each a violation
of R.C. 2925.03(A)(1) and (C)(4)(a) and each a fifth-degree felony. At a jury trial, the state
presented the testimony of four witnesses. A confidential informant testified that three
times in 2014 (on January 15, January 30, and March 6) he made controlled buys of a
gram-and-a-half to two grams of cocaine from Brown, in Brown’s house, in cooperation
with the Urbana Police Division. The detective from the Investigation Division who worked
with the informant testified generally about how controlled drug buys are conducted and
specifically about the buys made from Brown. And the supervisor of the Investigation
Division testified about the investigation and controlled buys in this case. Finally, a
forensic scientist from the Ohio Bureau of Criminal Investigation testified that what the
informant received from Brown in each transaction was in fact cocaine. The defense did
not call any witnesses or present any other evidence. The jury returned verdicts of guilty
on all three counts, after deliberating for just over an hour.
{¶ 3} The trial court sentenced Brown to three 10-month prison terms and ordered
him to serve the terms consecutively. The court also ordered Brown to pay court costs
and to pay the fees and expenses of his court-appointed attorney and imposed a total
fine of $750.
{¶ 4} Brown appealed.
II. Analysis
{¶ 5} Brown presents two assignments of error for our review. The first concerns
the length of time that the jury deliberated, and the second challenges the trial court’s
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order that Brown serve the imposed sentences consecutively.
A. The length of time that the jury deliberated
{¶ 6} The first assignment of error alleges that the trial court erred by accepting the
jury’s verdicts when the jury had deliberated for only slightly more than an hour. Brown
contends that the court should have had the jury reconsider the case.
{¶ 7} The length of time that a jury deliberates is in the discretion of the trial court.
Val Decker Packing Co. v. Treon, 88 Ohio App. 479, 489, 97 N.E.2d 696 (2d Dist.1950).
“ ‘[T]he trial court may, in its discretion, cause the jury to reconsider the case if their
decision is so hasty as to indicate a flippant disregard of their duties.’ ” Id., quoting 64
Corpus Juris, Section 808, at 1019.
{¶ 8} Here, Brown did not ask the trial court to have the jury reconsider the case,
nor did he raise any objection to the jury’s verdict in the trial court, so plain-error review
applies. See State v. Obermiller, Slip Opinion No. 2016-Ohio-1594, ¶ 62 (“[W]hen a
defendant has not raised an objection at trial, plain-error review applies.”). “Plain errors
or defects affecting substantial rights may be noticed although they were not brought to
the attention of the court.” Crim.R. 52(B). Accordingly, “[t]o prevail under the plain-error
standard, a defendant must show that an error occurred, that it was obvious, and that it
affected his substantial rights.” (Citation omitted.) Obermiller at ¶ 62.
{¶ 9} “ ‘[T]he verdict should be the result of sound judgment, dispassionate
consideration, and conscientions [sic] reflection * * *.’ ” Val Decker at 489, quoting 64
Corpus Juris, Section 808, at 1019. “Brief deliberation, by itself, does not show that the
jury failed to give full, conscientious or impartial consideration to the evidence.” Wilburn
v. Eastman Kodak Co., 180 F.3d 475, 476 (2d Cir.1999), citing Ahern v. Scholz, 85 F.3d
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774, 785-786 (1st Cir.1996); Paoletto v. Beech Aircraft Corp., 464 F.2d 976, 983 (3d
Cir.1972); Marx v. Hartford Accident and Indem. Co., 321 F.2d 70, 71 (5th Cir.1963);
Segars v. Atlantic Coast Line R.R. Co., 286 F.2d 767, 770 (4th Cir.1961). “There is no
statutory provision prescribing the length of time a jury shall deliberate before reaching a
verdict.” Val Decker at 489. See also Merkl v. Seibert, 1st Dist. Hamilton No. C-080973,
2009-Ohio-5473, ¶ 50 (“There is no prescribed time that a jury must deliberate.”); Wilburn
at 476 (“A jury is not required to deliberate for any set length of time.”). “ ‘[W]here the law
does not positively prescribe the length of time a jury shall consider their verdict, they may
render a valid verdict without retiring, or on very brief deliberation after retiring * * *.’ ” Val
Decker at 489, quoting 64 Corpus Juris, Section 808, at 1019.
{¶ 10} In this case, the evidence that the state presented against Brown is
uncomplicated and straight forward. An informant testified that he made three controlled
buys of cocaine from Brown. Two police officers testified about how the buys were
conducted. And a forensic scientist testified that what Brown sold the informant was
cocaine. Brown presented no evidence. The entire trial—empaneling the jury, opening
and closing statements, jury instructions—took just over a day.
{¶ 11} Given the evidence presented, and the absence of anything in the record
suggesting a problem, a good reason to think that the jury disregarded its duties is far
from obvious. Therefore the trial court did not err by not having the jury reconsider the
case.
{¶ 12} The first assignment of error is overruled.
B. Consecutive sentences
{¶ 13} The second assignment of error alleges that the trial court erred by ordering
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Brown to serve his sentences consecutively. 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.” State v. Marcum, Slip
Opinion No. 2016-Ohio-1002, ¶ 1. “Clear and convincing evidence is that measure or
degree of proof which is more than a mere ‘preponderance of the evidence,’ but not to
the extent of such certainty as is required ‘beyond a reasonable doubt’ in criminal cases,
and which will produce in the mind of the trier of facts a firm belief or conviction as to the
facts sought to be established.” Id. at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469,
120 N.E.2d 118 (1954), paragraph three of the syllabus.
{¶ 14} The relevant statute here, R.C. 2929.14, allows a sentencing court to order
consecutive sentences if the court finds (1) that the consecutive service is 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 offender’s conduct and to
the danger that he poses to the public, and (3) that the offender’s history of criminal
conduct demonstrates that consecutive sentences are necessary to protect the public
from future crime by him. R.C. 2929.14(C)(4)(c).
{¶ 15} The trial court here found that before committing the offenses in this case
Brown had not committed a criminal act during the previous five years. But the court found
that Brown does have a criminal record. He was adjudicated a juvenile delinquent, and
after his adjudication, the court found, Brown was not rehabilitated to a satisfactory
degree. While he has no prior adult drug convictions, as a juvenile he was convicted of
possessing Valium. As an adult, Brown has been convicted for non-drug crimes—burglary
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in 1998, for which he served time in prison, and OMVI in 2001. The trial court found that
Brown has not responded favorably to the sanctions imposed for his past criminal
convictions.
{¶ 16} With respect to the offenses in this case, the trial court found that by selling
drugs to another Brown encouraged the buyer to engage in criminal behavior by reselling
the drugs or by using them. The court also found that the informant had been harassed
because he cooperated with police. The court stressed that it was not saying that Brown
was directly involved with the harassment. Rather, said the court, the fact that the
harassment occurred showed the seriousness of Brown’s criminal conduct.
{¶ 17} As to consecutive sentences, the court found that consecutive sentences
are not disproportionate to the seriousness of the conduct and the danger that Brown
poses to the public, citing “the repetitive nature of the criminal conduct, as well as the
location in the residential neighborhood, and the type of offense committed.” (Sentencing
Tr. 28). Although the court found that Brown did not commit the worst form of the offense,
because no one was hurt and because of the time of day that the offenses occurred
(afternoon or early evening), it found that consecutive sentences are necessary to protect
the public from future crime by Brown, because the drug sales were indiscriminate and
because of his history of criminal conduct.
{¶ 18} Brown contends that consecutive sentences are not appropriate because
he did not commit the worst form of the offense and no one was harmed. These are only
factors to consider, though; they are not dispositive. We cannot modify or vacate Brown’s
sentence unless we clearly and convincingly find that the record does not support it. Our
review of the record reveals sufficient facts to support Brown’s sentence.
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{¶ 19} The second assignment of error is overruled.
III. Conclusion
{¶ 20} We have overruled each of the assignments of error presented. The trial
court’s judgment is affirmed.
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DONOVAN, P.J. and WELBAUM, J., concur.
Copies mailed to:
Jane A. Napier
V. Gayle Miller
Hon. Nick A. Selvaggio