State v. Brewer , 2016 Ohio 5366 ( 2016 )

[Cite as State v. Brewer, 2016-Ohio-5366.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 14CA010608
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
PAUL B. BREWER COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellant CASE No. 13CR087463
DECISION AND JOURNAL ENTRY
Dated: August 15, 2016
CARR, Judge.
{¶1} Appellant, Paul Brewer, appeals the judgment of the Lorain County Court of
Common Pleas. This Court affirms.
I.
{¶2} On June 19, 2013, the Lorain County Grand Jury indicted Brewer on one count of
failure to register a change of address in violation of R.C. 2950.05(F)(1). Though Brewer
pleaded not guilty to the charge at arraignment, he subsequently filed a competency motion and
entered a plea of not guilty by reason of insanity. Brewer also signed a waiver of his speedy trial
rights. After several months of pretrial proceedings, Brewer withdrew his NGRI plea and
reinstated his plea of not guilty. Brewer also withdrew his speedy trial waiver. The matter
proceeded to a jury trial. Before the commencement of trial, Brewer moved to dismiss the
indictment on the basis that his speedy trial rights had been violated. The trial court denied this
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motion. Brewer was subsequently convicted of the sole count in the indictment and the trial
court imposed a two-year prison sentence.
{¶3} On appeal, Brewer raises three assignments of error.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED BY OVERRULING APPELLANT’S MOTION
TO DISMISS BASED ON A VIOLATION OF HIS SPEEDY TRIAL RIGHTS.
{¶4} In his first assignment of error, Brewer contends that the trial court erred by
denying his motion to dismiss on speedy trial grounds. This Court disagrees.
{¶5} When reviewing an appellant’s claim that he was denied his right to a speedy
trial, an appellate court applies a de novo standard of review. State v. Gaines, 9th Dist. Lorain
No. 00CA008298, 2004-Ohio-3407, ¶ 9. “The Supreme Court of Ohio has found that the
statutory speedy trial provisions set forth in R.C. 2945.71 are coextensive with Ohio and federal
constitutional speedy trial provisions.” Gaines at ¶ 9, citing State v. O’Brien, 34 Ohio St. 3d 7
(1987), paragraph one of the syllabus.
{¶6} R.C. 2945.71(C)(2) states that “[a] person against whom a charge of felony is
pending * * * [s]hall be brought to trial within two hundred seventy days after the person’s
arrest.” “[E]ach day during which the accused is held in jail in lieu of bail on the pending
charges shall be counted as three days.” R.C. 2945.71(E). “Upon motion made at or prior to the
commencement of trial, a person charged with an offense shall be discharged if he is not brought
to trial within the time required by [R.C. 2945.71].” R.C. 2945.73(B).
{¶7} An accused may waive his or her speedy trial rights as long as the waiver is
knowingly and voluntarily made. State v. Kovacek, 9th Dist. Lorain No. 00CA007713, 2001 WL
577664, *4 (May 30, 2001). While a waiver may be limited in duration, a written waiver that
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expressly waives the defendant’s right to a speedy trial under the statute without mentioning
specific time periods is considered to be unlimited in duration. State v. Troutman, 9th Dist.
Lorain No. 09CA009590, 2010-Ohio-39, ¶ 24, citing State v. Skorvanek, 9th Dist. Lorain No.
08CA009399, 2009-Ohio-3924, ¶ 13. “This Court has further held that, ‘when a waiver fails to
include a specific date as the starting point for the tolling time, the waiver is deemed to be
effective from the date of arrest.’” Skorvanek at ¶ 13, quoting State v. Bray, 9th Dist. Lorain No.
03CA008241, 2004-Ohio-1067, ¶ 8. “Following an express, written waiver of unlimited
duration by an accused of his right to a speedy trial, the accused 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, 34 Ohio St. 3d 7, at paragraph two of syllabus; Bray at ¶ 8. It follows that “once an
accused revokes his unlimited waiver, the strict requirements of [R.C. 2945.71 et seq.] no longer
apply.” Troutman at ¶ 24, quoting Skorvanek at ¶ 14.
{¶8} In this case, Brewer was arrested in Massachusetts on August 26, 2013. On
September 9, 2013, the trial court issued a journal entry which read, “Defendant waives statutory
time for speedy trial pursuant to R.C. 2945.71 et seq.” Both Brewer and the trial judge signed
the waiver. On December 6, 2013, at the time Brewer filed a notice of withdrawal of his NGRI
plea, Brewer notified the trial court that he was withdrawing his speedy trial waiver and re-
instating his original plea of not guilty. At Brewer’s request, trial was scheduled for February 5,
2014. Due to a previously scheduled capital murder, the trial court rescheduled Brewer’s trial
for March 10, 2014. When the parties appeared on that date, Brewer moved to dismiss the
indictment on speedy trial grounds. The trial court promptly denied the motion, noting that
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Brewer was brought to trial in a reasonable amount of time given that holding a trial in February
was not possible due to scheduling conflicts.
{¶9} On appeal, Brewer argues that the waiver he signed on September 9, 2013, is
unenforceable because it appeared on a standardized pretrial form produced by the Lorain
County Court of Common Pleas. Brewer contends the waiver he signed is akin to an
unenforceable adhesion contract, meaning that the only tolling event that occurred in this case
was the filing of his NGRI plea. This Court has previously held that a form journal entry with
identical language constituted a valid speedy trial waiver of unlimited duration. Skorvanek,
2009-Ohio-3924, ¶ 19. Brewer signed his name directly below the waiver language that was
written in all capital letters. See Troutman, 2010-Ohio-39, ¶ 23. The form’s legitimacy is further
reinforced by the fact that Brewer filed a written withdrawal of his speedy trial waiver on
December 6, 2013, and he refused to sign the waiver portion of the form from that point forward.
Id. Under these circumstances, Brewer’s contention that his waiver was unenforceable is
without merit.
{¶10} Brewer further contends that the triple count provision set forth by R.C.
2945.71(E) was in effect in this case and that the State failed to bring him to trial within the 90-
day window. As noted above, Brewer was arrested on August 26, 2013, and he signed a speedy
trial waiver shortly thereafter. While he subsequently filed a written withdrawal of his waiver,
we are mindful that the strict requirements of R.C. 2945.71 were no longer applicable after the
time of his withdrawal and the State was required to bring Brewer to trial in a reasonable time.
O’Brien, 34 Ohio St. 3d 7, at paragraph two of syllabus; Bray at ¶ 8. When Brewer withdrew his
waiver on December 6, 2013, the trial court promptly scheduled the final pretrial for January 16,
2014, and set the trial date on February 6, 2014. Given that the pretrial proceedings up to that
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point had focused on competency issues relating to Brewer’s NGRI plea, the trial schedule set
forth by the trial court was exceedingly reasonable. While Brewer was not brought to trial until
March 10, 2014, that was due to the fact that the trial court had previously scheduled a capital
murder case for trial in February 2014. A trial court may continue a trial date without violating a
defendant’s right to a speedy trial if the purpose and length of the continuance are reasonable.
State v. Meyers, 9th Dist. Summit Nos. 23864, 23903, 2008-Ohio-2528, ¶ 39. Here, the trial
court’s need to resolve the capital murder case was reasonable and resulted in only a minimal
delay for Brewer.
{¶11} As Brewer was brought to trial within a reasonable time after he withdrew his
speedy trial waiver, the first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED BY OVERRULING APPELLANT’S CRIM.R. 29
MOTION FOR ACQUITTAL BECAUSE THERE WAS INSUFFICIENT
EVIDENCE THAT APPELLANT CHANGED HIS ADDRESS.
{¶12} In his second assignment of error, Brewer contends that the trial court erred by
denying his Crim.R. 29 motion for acquittal. This Court disagrees.
{¶13} In support of his assignment of error, Brewer contends that the trial court
considered improper evidence when ruling on his Crim.R. 29 motion. Brewer further maintains
that, regardless of the admissibility of the State’s evidence, the State did not prove that Brewer
violated the sex offender reporting requirements mandated by R.C. 2950.05(F)(1).
{¶14} “R.C. 2950.05(A) requires the class of sex offenders to which it applies to notify
the sheriff of ‘any’ change of address.” State v. Combs, 12th Dist. Brown No. CA2013-08-008,
2014-Ohio-2117, ¶ 8. In this case, Brewer was convicted of failing to register a change of
address in violation of R.C. 2950.05(F)(1), which states, “No person who is required to notify a
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sheriff of a change of address pursuant to division (A) of this section * * * shall fail to notify the
appropriate sheriff in accordance with that division.” R.C. 2950.05(I) provides that “change of
address” encompasses “any circumstances in which the old address for the person in question no
longer is accurate, regardless of whether the person in question has a new address.”
{¶15} Crim.R. 29(A) provides, in relevant part:
The court on motion of a defendant or on its own motion, after the evidence on
either side is closed, shall order the entry of a judgment of acquittal of one or
more offenses charged in the indictment, information, or complaint, if the
evidence is insufficient to sustain a conviction of such offense or offenses. The
court may not reserve ruling on a motion for judgment of acquittal made at the
close of the state’s case.
{¶16} When reviewing the sufficiency of the evidence, this Court must review the
evidence in a light most favorable to the prosecution to determine whether the evidence before
the trial court was sufficient to sustain a conviction. State v. Jenks, 61 Ohio St. 3d 259, 279
(1991).
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.
Id. at paragraph two of the syllabus.
{¶17} The State presented the following evidence at trial. In 2005, Brewer was
convicted of sexual battery in violation of R.C. 2907.03. Consequently, Brewer was required to
comply with Ohio’s sex offender reporting requirements for a period of ten years. On December
21, 2012, Brewer registered that he was residing at 1915 West 21st Street, Lorain, Ohio. Deputy
Deborah Hurlburt of the Lorain County Sheriff’s Department verified that Brewer had given the
correct address. Due to an unrelated matter, Officer Richard Rhines of the Ohio Department of
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Rehabilitation and Correction began supervising Brewer in 2012. Brewer was scheduled to
report for a meeting with Officer Rhines on March 19, 2013. When Brewer failed to report for a
meeting, Officer Rhines spent the next six weeks attempting to locate Brewer. Officer Rhines
testified that Brewer was declared “at large” on May 2, 2013.
{¶18} Kenneth Weisman, Brewer’s landlord at the West 21st Street address, testified
that he rented Brewer an apartment in 2012. Due to a failure to pay rent, Weisman served
Brewer with a “notice to leave premises” on April 7, 2013, and asked him to be out of his
apartment three days later. Weisman and Brewer reached an agreement where Brewer could stay
an additional month in exchange for the security deposit. Weisman did not see Brewer at the
apartment in May 2013, and, approximately one month later, he disposed of the items remaining
in Brewer’s apartment.
{¶19} On May 29, 2013, Officer Rhines contacted Deputy Hurlburt after learning that
Brewer was in Boston, Massachusetts. The following day, Deputy Hurlburt went to the West
21st Street address in Lorain and confirmed that Brewer was not there. At that point, the Adult
Parole Authority placed a holder on Brewer and he was eventually extradited back to Ohio.
Deputy Hurlburt testified that while she could not locate Brewer at the West 21st Street, Brewer
never registered a change of address.
{¶20} Brewer contends that this Court should not consider Officer Rhines’ testimony in
analyzing the sufficiency of the evidence due to the fact that, in Brewer’s view, it was admitted
in violation of Evid.R. 403 and Evid.R. 404. However, whether this testimony was properly
admitted is irrelevant as this Court has recognized that “an appellate court must consider all of
the evidence presented by the State in evaluating the sufficiency of the evidence, even if the
evidence was improperly admitted by the trial court.” State v. Sadeghi, 9th Dist. Wayne No.
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14AP0051, 2016-Ohio-744, ¶ 22, citing State v. Brewer, 121 Ohio St. 3d 202, 2009-Ohio-593, ¶
19; Lockhart v. Nelson, 488 U.S. 33, 34 (1988). Accordingly, we will consider all of the
evidence presented by the State in evaluating whether the trial court erred in denying Brewer’s
Crim.R. 29 motion.
{¶21} The evidence presented at trial, when construed in the light most favorable to the
State, was sufficient to demonstrate Brewer failed to comply with the sex offender reporting
requirements. Brewer was required to notify the sheriff of any change of address. R.C.
2950.05(F)(1). Though Brewer suggests that the evidence is unclear as to whether he had an
“intent to return,” R.C. 2950.05(I) makes clear that “change of address” includes “any
circumstances in which the old address for the person in question no longer is accurate,
regardless of whether the person in question has a new address.” Here, the evidence showed
Brewer failed to pay his rent at his apartment in Lorain and, in early April 2013, he was given
one month to vacate the premises. The evidence further showed that Brewer’s parole officer was
unable to locate Brewer at that address from March 19 to May 2, 2013, and Brewer’s landlord
did not see Brewer at the apartment during the entire month of May. Despite never registering a
change of address, Brewer was located in Boston, Massachusetts, later that month. The
aforementioned evidence was sufficient to demonstrate that Brewer was no longer residing at the
Lorain apartment and that he failed to notify the sheriff that that address was no longer accurate,
in violation of R.C. 2950.05.
{¶22} The second assignment of error is overruled.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED BY ALLOWING TESTIMONY THAT WAS
SUBSTANTIALLY MORE PREJUDICIAL THAN PROBATIVE
PERTAINING TO APPELLANT’S REGISTRATION OBLIGATIONS.
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{¶23} In his third assignment of error, Brewer contends that the trial court violated
Evid.R. 403(A) and Evid.R. 404(B) by allowing Officer Rhines to testify that Brewer was on
post-release control at the time of the alleged offense. Brewer contends that Officer Rhines’
testimony served only to confuse the jury and paint Brewer in a negative light. This Court
disagrees.
{¶24} Evid.R. 403(A) states that “[a]lthough relevant, evidence is not admissible if its
probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the
issues, or of misleading the jury.” Evid.R. 404(B) provides that “[e]vidence of other crimes * *
* is not admissible to prove the character of a person in order to show action in conformity
therewith.” The decision to admit or exclude evidence at trial lies within the sound discretion of
the trial court. State v. Stover, 9th Dist. Wayne No. 13CA0035, 2014-Ohio-2572, ¶ 7. An abuse
of discretion indicates that the trial court’s attitude was unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219 (1983).
{¶25} A review of the trial transcript reveals that the State attempted to lay a foundation
for Officer Rhines’ testimony by asking how he was familiar with Brewer. Officer Rhines
explained that he was assigned to supervise Brewer while Brewer was on post-release control for
an unrelated escape conviction. Officer Rhines stated that Brewer was required to meet certain
conditions, including reporting to Officer Rhines for a number of meetings. Defense counsel
objected on the basis that testimony regarding sanctions for an unrelated offense was irrelevant
and unduly prejudicial. After a lengthy discussion outside the presence of the jury, the trial court
instructed the jury that Brewer’s alleged escape conviction was immaterial to the current case,
stating “We’re not here to say whether [Brewer] was convicted of an escape and therefore had to
report to [Officer Rhines].” The trial court further stated that Officer Rhines could only testify
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regarding his personal knowledge of Brewer’s whereabouts at any particular point in time. In
conclusion, the trial court stated, “So with that you may ask your next question, but anything
regarding parole violations or potential parole violations are to be disregarded and stricken from
this case. It might pertain to another case sometime about parole violations, but not this case[.]”
{¶26} The trial court did not abuse its discretion by issuing a limiting instruction to the
jury and permitting Officer Rhines’ to testify about his personal knowledge of Brewer’s
whereabouts. In response to defense counsel’s objection, the trial court instructed the jury that
the testimony about Brewer’s escape conviction, as well as any sanctions relating to that
conviction, was irrelevant to this matter. The trial court further ordered that the testimony was to
be stricken from the record. The limiting instruction “minimized the likelihood of any undue
prejudice regarding the jury’s consideration of [Officer Rhines’] testimony.” State v. Jones, 135
Ohio St. 3d 10, 2012-Ohio-5677, ¶ 194. Moreover, “[a] presumption exists that the jury has
followed the instructions given to it by the trial court.” Id., quoting State v. Murphy, 65 Ohio
St.3d 554, 584 (1992). After the trial court gave the limiting instruction, Officer Rhines was not
permitted to offer any additional testimony about the escape charge or the details of Brewer’s
post-release control. Under these circumstances, where the trial court limited Officer Rhines’
testimony to his personal knowledge of Brewer’s whereabouts, the trial court did not abuse its
discretion in admitting Officer Rhines’ testimony.
{¶27} Brewer’s third assignment of error is overruled.
III.
{¶28} Brewer’s assignments of error are overruled. The judgment of the Lorain County
Court of Common Pleas is affirmed.
Judgment affirmed.
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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 mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
HENSAL, P. J.
SCHAFER, J.
CONCUR.
APPEARANCES:
STEPHEN P. HANUDEL, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant
Prosecuting Attorney, for Appellee.