State v. Brown ( 2017 )

[Cite as State v. Brown, 2017-Ohio-1114.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Patricia A. Delaney, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. 2016 CA 0043
STANLEY D. BROWN, JR.
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 2015 CR 0698
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 28, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
BAMBI COUCH PAGE BYRON CORLEY
PROSECUTING ATTORNEY 22 North Walnut Street
DANIEL M. ROGERS Mansfield, OHio 44902
ASSISTANT PROSECUTOR
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 2016 CA 0043 2
Wise, J.
{¶1} Appellant Stanley D. Brown, Jr. appeals his conviction on two counts of
Aiding and Abetting Rape and one count of Kidnapping following a jury trial.
{¶2} Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} On August 11, 2015, a Richland County Grand Jury indicted Appellant
Stanley D. Brown, Jr. on three (3) counts related to Appellant's participation in the gang-
rape of an intoxicated fifteen (15) year old girl at the Mansfield Rodeway Inn at 880 Laver
Road in Mansfield, Ohio on January 3, 2015. Counts 1 and 2 charged Appellant with
alternative forms of Aiding or Abetting Rape, both first-degree felonies pursuant to R.C.
§2907.02(A)(1)(C) and (A)(2) and §2923.03(A)(2). Count 3 charged Appellant with
Kidnapping, a first-degree felony pursuant to R.C. §2905.01(A)(4).
{¶4} The relevant facts are as follows:
{¶5} On Saturday, January 3, 2015, Amir Evans invited fifteen (15) year old J.J.
to a party at the Rodeway Inn at 880 Laver Road, Mansfield, Ohio. (T. at 217-219). Evans
had Trae Coopwood pick J.J. up and take her to the Rodeway Inn. (T. at 219).
{¶6} After being dropped off at the Rodeway Inn by Coopwood, J.J. met up with
Evans, who rented two (2) rooms. (T. at 220, 224). J.J., Evans, Jermaine Hughes
(hereinafter "Co-Defendant Hughes") and four (4) to five (5) other people went into the
first room and began partying. (T. at 221-223). During the party in the first room, J.J.
consumed alcohol, Marijuana, and psychedelic mushrooms. (T. at 221, 222, 267, 268).
{¶7} Approximately ninety (90) minutes after the party began, Appellant Stanley
Brown, Jr., Eyrihk Murphy (hereinafter "Co-Defendant Murphy") and several other people
Richland County, Case No. 2016 CA 0043 3
arrived at the Rodeway Inn and began partying with J.J., Evans and Co-Defendant
Hughes. (T. at 222, 223).
{¶8} Approximately two (2) hours after J.J. arrived at Rodeway Inn, Appellant
Brown, Co-Defendant Hughes, Co-Defendant Murphy, J.J., Evans, and several other
people moved from the first room into the second room rented by Evans. (T. at 224, 225).
Evans then left the second room, returning to the first room and leaving J.J. alone with
Appellant Brown, Co-Defendant Hughes, and Co-Defendant Murphy. While in the second
room, J.J. participated in a drinking game with Southern Comfort and Patron tequila. (T.
at 226). As a result of her high level of intoxication, J.J. lost consciousness. (T. at 228).
{¶9} Upon regaining consciousness, J.J. discovered Co-Defendant Hughes
vaginally penetrating her without her consent. (T. at 229). Appellant Brown was
encouraging Co-Defendant Hughes as he vaginally raped J.J. and told J.J. to relax. (T.
at 230-233). In addition to encouraging Co-Defendant Hughes, Appellant Brown, who was
sitting on the bed directly next to J.J.'s head throughout the rape, pushed J.J. down by
her shoulder when she tried to get up from the bed. (T. at 229-231, 470-472). Appellant
also shoved his penis in J.J.'s face and attempted to force J.J. to perform oral sex on him.
(T. at 232, 233, 470-472).
{¶10} While the rape was occurring, Evans attempted to regain entry into the
second room two (2) different times. (T. at 595-599). However, the occupants locked the
door and ignored Evans knocking on the door. Id. Following the rape, J.J. returned to the
first room, confronted Evans, and told him what Appellant Brown, Co-Defendant Hughes,
and Co-Defendant Murphy had done to her. (T. at 236, 237, 600, 601). However, neither
Richland County, Case No. 2016 CA 0043 4
J.J. nor Evans contacted the police, as they were afraid they would get in trouble due to
their underage drinking and drug use. (T. at 616, 617).
{¶11} After returning home from Rodeway Inn on Sunday, January 4, 2015, J.J.
neither showered nor changed her clothes from the night before. (T. at 239). Instead, she
ran errands with her mother and hoped that the events of January 3, 2015 would remain
a secret. Id. However, when J.J. went to school on Monday, January 5, 2015, several of
her friends made contact with her regarding what happened on January 3, 2015 at the
Rodeway Inn. (T. at 239, 240).
{¶12} Late in the evening on January 5, 2015, J.J. had a friend take her to
OhioHealth Mansfield for a SANE exam, as she was still too embarrassed to tell her
mother what happened at Rodeway Inn on January 3, 2015. (T. at 240, 241). During the
SANE exam, J.J. advised SANE nurse Tammy Robertson of the events of January 3,
2015, and identified Appellant Brown and Co-Defendant Hughes as two (2) of her
attackers. (T. at 329, 330). Ms. Robertson completed a rape kit and collected anal and
vaginal swabs, pubic hair, and fingernail clippings from J.J. (T. at 325-329). Ms.
Robertson also made contact with Richland County Sheriff’s Office and J.J.'s mother in
order to collect J.J.'s clothes from January 3, 2015. (T. at 331, 332). Richland County
Sheriff’s Deputy Broom collected J.J.'s rape kit and clothing from January 3, 2015, and
submitted them to Bureau of Criminal Investigation (hereinafter "BCI"). (T. at 578-583).
{¶13} On January 8, 2015, Richland County Sheriff’s Deputy Dittrich interviewed
J.J., who provided a statement regarding the rape at Rodeway Inn on January 3, 2015,
and identified Appellant Brown, Co-Defendant Hughes and Co-Defendant Murphy as her
attackers. (T. at 507-511). Deputy Dittrich then made contact with Evans and obtained
Richland County, Case No. 2016 CA 0043 5
his statement regarding the events of January 3, 2015. (T. at 509). Following her
interviews with J.J. and Evans, Deputy Dittrich obtained search warrants for DNA swabs
from Appellant Brown, Co-Defendant Hughes, Co-Defendant Murphy and several other
guests who were at the party at Rodeway Inn on January 3, 2015. (T. at 511-513). Deputy
Dittrich submitted those DNA swabs to BCI for comparison to the swabs taken from J.J.'s
person and J.J.'s clothing. Id.
{¶14} Lindsey Pruneski and Jennifer Colecchia, two (2) forensic scientists at BCI,
analyzed and compared the various DNA swabs. (T. at 410-430; 440-483). Ms. Colecchia
identified Appellant Brown as the source of both sperm and non-sperm DNA on J.J.'s shirt
from January 3, 2015, with a reasonable degree of scientific certainty. (T. at 470-472).
Ms. Colecchia also identified Co-Defendant Hughes as the source of sperm DNA
recovered from J.J.'s vagina with a reasonable degree of scientific certainty. (T. at 459).
{¶15} Approximately one (1) week after the rape, Appellant Brown made contact
with J.J. via Snapchat and asked J.J. if she had called the police. (T. at 243, 244). J.J.
never responded to Appellant's message. (T. at 244).
{¶16} On August 11, 2015, a Richland County Grand Jury indicted Appellant
Stanley D. Brown, Jr. on one count of Aiding or Abetting Rape, pursuant to R.C.
§2907.02(A)(1)(C) and (A)(2), one count of Aiding or Abetting Rape, pursuant to R.C.
§2923.03(A)(2), and one count of Kidnapping, pursuant to R.C. §2905.01(A)(4). All
charges were first-degree felonies.
{¶17} Appellant entered pleas of not guilty to the charges.
{¶18} On April 12, 2016, the State filed a "Request for Hearing" with the trial court
regarding the admissibility of certain evidence.
Richland County, Case No. 2016 CA 0043 6
{¶19} On June 1, 2016, the trial court held an Oral Hearing on Admissibility of
Evidence. During the hearing, Appellant argued that, pursuant to his right of confrontation,
he should be allowed to present evidence regarding J.J. having a venereal disease and
J.J. previously frequenting Rodeway Inn.
{¶20} Following the Oral Hearing on Admissibility of Evidence, the trial court
excluded any evidence as to J.J. having a venereal disease or any previous visits to the
Rodeway Inn pursuant to the "Rape Shield Law" under R.C. §2907.02(D).
{¶21} On June 2, 2016, Appellant's case proceeded to jury trial. During the jury
trial, the State presented testimony from eight (8) witnesses, including J.J., and
introduced thirty-one (31) exhibits, including Lab Reports confirming the presence of
Appellant's sperm and non-sperm DNA on J.J.'s body.
{¶22} Appellant did not introduce any exhibits and only presented his own
testimony.
{¶23} On June 7, 2016, the jury found Appellant guilty of Aiding or Abetting Rape
pursuant to R.C. §2907.02(A)(1)(c) and not guilty on the remaining counts of the
indictment.
{¶24} Following the verdict, the trial court scheduled a Sentencing Hearing for
June 13, 2016.
{¶25} On June 13, 2016, the trial court sentenced Appellant to a seven (7) year
prison term, imposed five (5) years of mandatory post-release control, and classified
Appellant as a Tier III sex offender.
{¶26} On July 8, 2016, while represented by appellate counsel, Appellant filed a
pro se "Motion for New Trial" with the trial court.
Richland County, Case No. 2016 CA 0043 7
{¶27} On July 14, 2016, the State filed its "Response to Defendant's Motion for a
New Trial" with the trial court.
{¶28} On July 22, 2016, the trial court overruled Appellant's "Motion for New Trial."
{¶29} Appellant now appeals.
ASSIGNMENTS OF ERROR
{¶30} “I. THE TRIAL COURT’S RULING TO EXCLUDE PROBATIVE EVIDENCE
PURSUANT TO OHIO’S RAPE SHIELD STATUTE R.C.2907(D) [SIC] VIOLATED
BROWN’S SIXTH AMEMNDMENT [SIC] GURANTEE [SIC] TO REASNONABLE [SIC]
CROSS-EXAMINATION.
{¶31} “II. THE JURY FINDING OF GUILTY OF AIDING AND ABETTING THE
IMPAIRED CONSENT TYPE OF RAPE WAS NOT SUPPORTED BY SUFFICIENT
EVIDENCE AS A MATTER OF LAW.”
I.
{¶32} In his First Assignment of Error, Appellant argues that the trial court erred
in excluding testimony pursuant to R.C. §2907.02. We disagree.
{¶33} Ohio’s Rape Shield Law as codified in R.C. §2907.02(D) provides:
Evidence of specific instances of the victim's sexual activity, opinion
evidence of the victim's sexual activity, and reputation evidence of the
victim's sexual activity shall not be admitted under this section unless it
involves evidence of the origin of semen, pregnancy, or disease, or the
victim's past sexual activity with the offender, and only to the extent that the
court finds that the evidence is material to a fact at issue in the case and
Richland County, Case No. 2016 CA 0043 8
that its inflammatory or prejudicial nature does not outweigh its probative
value.
{¶34} The “rape shield” law allows testimony on specific instances of a victim's
“sexual activity” if the evidence is “material to a fact at issue in this case” and its probative
value outweighs its inflammatory or prejudicial nature.
{¶35} Here, Appellant argues that he should have been allowed to present
evidence that “J.J. has previously partied at this hotel.” (Appellant’s brief at 5).
{¶36} In determining whether “prior acts” evidence should be admitted, the court
must balance the interests of the victim, which the statute is designed to protect, and the
defendant's right to confront and cross-examine the State's witnesses. State v. Williams
(1986), 21 Ohio St.3d 33, 35, 487 N.E.2d 560. If the evidence in question is merely being
used to impeach the victim's credibility, it is not of probative value as to the alleged rape
itself and should not be admitted. Id.{¶37} Appellant does not argue that J.J. had previously engaged in sexual
conduct with him or his co-defendants at the Rodeway Inn.
{¶38} Upon review, we find any evidence as to whether or not J.J. had previously
attended parties at the Rodeway Inn had no probative value as to whether, on the night
in question, Appellant aided and abetted in her rape or whether she was substantially
impaired at the time.
{¶39} Based on the foregoing, we find Appellant's First Assignment of Error not
well-taken and hereby overrule same.
Richland County, Case No. 2016 CA 0043 9
II.
{¶40} In his Second Assignment of Error, Appellant argues his conviction for
aiding and abetting rape was not supported by sufficient evidence. We disagree.
{¶41} A review of the sufficiency of the evidence and a review of the manifest
weight of the evidence are separate and legally distinct determinations. State v. Gulley
(Mar. 15, 2000), 9th Dist. No. 19600, at 3. “While the test for sufficiency requires a
determination of whether the State has met its burden of production at trial, a manifest
weight challenge questions whether the State has met its burden of persuasion.” State v.
Thompkins (1997), 78 Ohio St.3d 380, 390, 678 N.E.2d 541.
{¶42} In order to determine whether the evidence before the trial court was
sufficient to sustain a conviction, this Court must review the evidence in a light most
favorable to the prosecution. State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492,
paragraph two of the syllabus, superseded by State constitutional amendment on other
grounds in State v. Smith (1997), 80 Ohio St.3d 89, 684 N.E.2d 668.
{¶43} Specifically, 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. State v. Jenks, supra. This test raises a
question of law and does not allow the court to weigh the evidence. State v. Martin (1983),
20 Ohio App.3d 172, 175, 485 N.E.2d 717. 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. Thompkins, 78 Ohio St.3d at 386, 678 N.E.2d 541.
Richland County, Case No. 2016 CA 0043 10
{¶44} “Because sufficiency is required to take a case to the jury, a finding that a
conviction is supported by the weight of the evidence must necessarily include a finding
of sufficiency.” State v. Roberts (Sept. 17, 1997), 9th Dist. No. 96CA006462. Thus, a
determination that a conviction is supported by the weight of the evidence will also be
dispositive of the issue of sufficiency. Cuyahoga Falls v. Scupholm (Dec. 13, 2000), 9th
Dist. Nos. 19734 and 19735, unreported.
{¶45} In the case sub judice, Appellant was convicted of Aiding and Abetting
Rape, pursuant to R.C. §2923.03(A)(2) and R.C. §2907.02(A)(1)(c), which provide in
relevant part:
R.C. §2923.03 Complicity
(A) No person, acting with the kind of culpability required for the
commission of an offense, shall do any of the following:
***
(2) Aid or abet another in committing the offense;
R.C. §2907.02 Rape
(A)(1) No person shall engage in sexual conduct with another who is
not the spouse of the offender or who is the spouse of the offender but is
living separate and apart from the offender, when any of the following
applies:
***
(c) The other person's ability to resist or consent is substantially
impaired because of a mental or physical condition or because of
advanced age, and the offender knows or has reasonable cause to believe
Richland County, Case No. 2016 CA 0043 11
that the other person's ability to resist or consent is substantially impaired
because of a mental or physical condition or because of advanced age.
{¶46} “Sexual conduct” includes the act of cunnilingus, which has been described
as “placing one's mouth on the female's genitals.” R.C. §2907.01(A); State v. Lynch, 98
Ohio St.3d 514, 2003–Ohio–2284, 787 N.E.2d 1185, ¶ 86. As for the element of
substantial impairment, this Court has repeatedly held that “sleep constitutes a mental or
physical condition that substantially impairs a person from resisting or consenting to
sexual conduct.” State v. Jones, 8th Dist. Cuyahoga No. 98151, 2012–Ohio–5737, ¶ 30,
citing State v. Clark, 8th Dist. Cuyahoga No. 90148, 2008–Ohio–3358, ¶ 21.
{¶47} Because “substantial impairment” is not defined in the Ohio Criminal Code,
the Supreme Court of Ohio has found that “substantial impairment” can be established
“by demonstrating a present reduction, diminution or decrease in the victim's ability, either
to appraise the nature of his conduct or to control his conduct.” State v. Zeh, 31 Ohio
St.3d 99, 103–104 (1987); State v. Brown, 3d Dist. Marion No. 9–09–15, 2009–Ohio–
5428, ¶ 21. Further, substantial impairment “does not have to be proven by expert medical
testimony; rather, it can be shown to exist by the testimony of people who have interacted
with the victim, and by allowing the trier of fact to do its own assessment of the person's
ability to appraise or control his or her conduct.” State v. Brady, 8th Dist. Cuyahoga No.
87854, 2007–Ohio–1453, ¶ 78; Brown at ¶ 21. Finally, a determination of substantial
impairment is made “on a case-by-case basis, providing great deference to the fact-
finder.” Brown at ¶ 22.
{¶48} “Voluntary intoxication constitutes a ‘mental or physical condition’ that can
cause substantial impartment under R.C. 2907.02(A)(1)(c).” State v. Lasenby, 3d Dist.
Richland County, Case No. 2016 CA 0043 12
Allen No. 1–13–36, 2014–Ohio–1878, ¶ 28, citing State v. Harmath, 3d Dist. Seneca No.
13–06–20, 2007–Ohio–2993, ¶ 14.
{¶49} “The consumption of large amounts of alcohol in a short period of time is
evidence that voluntary intoxication caused substantial impairment.” Id., citing State v.
Hatten, 186 Ohio App.3d 286, 2010–Ohio–499, ¶ 22 (2d Dist.). It is also sufficient if the
victim testifies that she is unable to remember the events of the incident to establish
substantial impairment. Id., citing Harmath at ¶ 19. “[S]tumbling, falling, slurred speech,
passing out, [and] vomiting,” are evidence that an intoxicated person is substantially
impaired. Hatten at ¶ 24.
{¶50} At trial, the victim testified that she consumed whiskey and tequila,
marijuana and psychedelic mushrooms at the Rodeway Inn. She testified that she
participated in a drinking game with Appellant which involved alternating shots of
Southern Comfort and Patron tequila. She further testified that she became so intoxicated
that she lost consciousness. She testified that when she awoke, co-defendant Hughes
was having vaginal intercourse with her and Appellant was sitting on the bed next to her,
encouraging Hughes, telling her to relax and pushing her back down onto the bed when
she tried to get up. (T. at 230-233).
{¶51} Additionally, the victim testified that Appellant attempted to force the victim
to perform oral sex on him.
{¶52} The lab results from BCI identified Appellant as the source of both sperm
and non-sperm DNA recovered from the victim’s shirt.
{¶53} Based on the foregoing, we find that State presented sufficient evidence to
support the aiding and abetting rape conviction.
Richland County, Case No. 2016 CA 0043 13
{¶54} Appellant’s Second Assignment of Error is overruled.
{¶55} Accordingly the judgment of the Court of Common Pleas of Richland
County, Ohio, is affirmed.
By: Wise, John, J.
Delaney, P. J., and
Wise, Earle, J., concur.
JWW/d 0310