State v. Brown

[Cite as State v. Brown, 2018-Ohio-253.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, ) CASE NO. 16 MA 0161
)
PLAINTIFF-APPELLEE, )
)
VS. ) OPINION
)
DARRELL BROWN, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Mahoning County,
Ohio
Case No. 16 CR 883
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman St., 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Michael Kivlighan
3685 Stutz Drive
Suite 100
Canfield, Ohio 44406
JUDGES:
Hon. Carol Ann Robb
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: January 22, 2018
[Cite as State v. Brown, 2018-Ohio-253.]
ROBB, P.J.
{¶1} Defendant-Appellant Darrell Brown appeals from his conviction entered
in Mahoning County Common Pleas Court for felonious assault, menacing by
stalking, and assault.
{¶2} Three issues are raised in this appeal. First, Appellant argues he was
denied effective assistance of counsel when the trial court denied his request for
appointment of new counsel. He argues appointment of new counsel was required
because there was a complete breakdown in communication with his appointed
counsel. Alternatively, he requested a continuance to prepare for trial. The trial court
denied this request also. Appellant contends the trial court’s denial of the motion was
an abuse of discretion. Second, Appellant asserts the conviction for menacing by
stalking is not supported by sufficient evidence. Lastly, he argues the imposition of a
consecutive sentence is contrary to law because the record does not support the trial
court’s findings.
{¶3} For the reasons expressed below, all arguments lack merit. Appellant’s
conviction is affirmed.
Statement of the Facts and Case
{¶4} At approximately 12:30 a.m. on July 31, 2016 an argument occurred
between Jeronica Wolfe and Appellant at Jeronica’s house located 3948 Sunset
Boulevard in Boardman Township, Ohio. Trial Tr. 180-181. The argument was about
the use of a car. Trial Tr. 181-184. Jeronica and Appellant had known each other for
ten years and at some point were in a relationship. Trial Tr. 179-180. Celeste Wolfe,
Jericona’s adult daughter who resided with her, was upstairs getting ready to go out
while the argument was occurring. Trial Tr. 208. Celeste came downstairs to tell
Appellant to leave the residence. Trial Tr. 208. He allegedly attacked her while she
was coming down the stairs and punched her multiple times and then ran out of the
house with the keys to Celeste’s car. Trial Tr. 181-182, 208. Appellant admitted to
hitting Celeste four to eight times, but claims Celeste swung at him first and initiated
the fight. Trial Tr. 273. The altercation resulted in Celeste sustaining injuries; she
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lost consciousness, her nose was broken, and she had a facial laceration. Trial Tr.
213, 221-222.
{¶5} After regaining consciousness, Celeste, Jeronica, and a few other
people went in two separate cars to look for Appellant to get Celeste’s keys. Trial Tr.
185, 209. They drove to Judson Avenue and found Appellant. Trial Tr. 185, 209.
Appellant had a gun on his person, ran in the middle of the street, and yelled he
would kill them. Trial Tr. 186, 209. Appellant admitted he had a gun in the middle of
the street and used it to get them to leave. Trial Tr. 276. Celeste and Jeronica
immediately left and returned to the residence on Sunset Boulevard. Trial Tr. 186,
209.
{¶6} While Jeronica and Celeste were looking for Appellant, Boardman
police officers arrived at the residence on Sunset Boulevard. Trial Tr. 244-245. The
officers had been dispatched to the house after receiving an “open ended” 911 call
with screaming and fighting heard in the background. Trial Tr. 244. When the
officers arrived at the residence the front door was ajar and no one was home. Trial
Tr. 244. Jeronica and Celeste arrived at the house after the officers determined the
house was clear. Trial Tr. 245.
{¶7} Photographs were taken of Celeste and the stairs, and statements were
taken. Celeste was then taken to the hospital in an ambulance. Trial Tr. 187. The
emergency room doctor treated her for a closed head injury, nasal bone fracture, and
facial laceration. Trial Tr. 236.
{¶8} At around 8:30 a.m. on July 31, Appellant returned to the Sunset
Boulevard residence. Trial Tr. 188, 226-227. Jeronica’s other adult daughter,
Krystal, was sleeping on the living room floor and was awakened to the sound of
Appellant saying “yo-yo-yo” at the window. Trial Tr. 226. Jeronica and Krystal
testified they called the police. Trial Tr. 189, 227. Appellant used a key and tried to
push his way into the house, but Krystal pushed back and tried to keep him out of the
house. Trial Tr. 189-190, 227. An altercation ensued between Appellant and Krystal
in the driveway and backyard. Trial Tr. 190, 227. Appellant admitted to hitting and
kicking Krystal in the face during this altercation. Trial Tr. 279.
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{¶9} When the police arrived, Appellant fled on foot. Trial Tr. 252. He was
apprehended in Youngstown by a Youngstown police officer. Trial Tr. 254.
{¶10} Complaints were filed against Appellant in Mahoning County Court
Number 2, Boardman, for resisting arrest, burglary, assault, and obstructing official
business. 8/2/16 Complaint. At the initial appearance, Appellant was held in direct
contempt for statements he made to the court while walking away from the bench.
8/2/16 J.E. A preliminary hearing was held on August 9, 2016 and Appellant was
bound over to the Mahoning County Common Pleas Court. 8/9/16 J.E.
{¶11} Thereafter, Appellant was indicted for felonious assault in violation of
R.C. 2903.11(A)(1)(D), a second-degree felony; menacing by stalking in violation of
R.C. 2903.211(A)(1), a fourth-degree felony; burglary in violation of R.C.
2911.12(A)(2)(D), a second-degree felony; and assault in violation of R.C.
2903.13(A), a first-degree misdemeanor. 9/1/16 Indictment.
{¶12} Defense counsel made requests for discovery, moved for Appellant to
wear civilian clothes at trial, and filed a motion in limine. 9/14/16 and 9/23/16
Motions. A pretrial was held on September 21, 2016, the Wednesday before trial. At
that pretrial, Appellant asked for new counsel. 9/27/16 J.E. The trial court denied the
motion. 9/27/16 J.E. On the day of trial, Appellant through counsel renewed the
motion for new counsel or, in the alternative, moved for a continuance. 10/5/16 J.E.;
Trial Tr. 7-20. The trial court denied the requests. 10/5/16 J.E; Trial Tr. 7-20.
{¶13} The case proceeded to trial. The state’s case consisted of testimony
from the victims Jeronica, Celeste, and Krystal; two officers from the Boardman
Police Department; and the Emergency Room Doctor. Appellant testified on his own
behalf. The jury found Appellant guilty of felonious assault, menacing by stalking, and
assault. The jury found him not guilty of burglary. 10/5/16 J.E.
{¶14} Appellant was sentenced to an aggregate term of nine and a half years.
10/7/16 J.E.; Sentencing Tr. 15. He received eight years for felonious assault,
eighteen months for menacing by stalking, and six months for assault. 10/7/16 J.E.;
Sentencing Tr. 15-16. The six month assault sentence was ordered to be served
concurrently with the other sentences. 10/7/16 J.E.; Sentencing Tr. 16. The
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felonious assault and menacing by stalking sentences were ordered to be served
consecutively. 10/7/16 J.E.; Sentencing Tr.16. The trial court made consecutive
sentence findings at the sentencing hearing and in the judgment entry. 10/7/16 J.E.;
Sentencing Tr. 16.
{¶15} Appellant timely appealed his conviction.
First Assignment of Error
“Darrell Brown was denied his right to the effective assistance of counsel as
guaranteed by the Sixth and Fourteenth Amendments to the United States
Constitution and Section 10, Article I of the Ohio Constitution.”
{¶16} Appellant asserts he was denied his right to effective assistance of
counsel because the trial court did not grant his request for substitute counsel. He
contends there was a complete breakdown in communication between himself and
his counsel and thus, substitute counsel was warranted. Alternatively, he argues the
trial court abused its discretion when it denied his motion for a continuance.
Appellant argues since the trial court denied his request for alternative counsel, it
should have granted his request for a continuance so that he and his attorney could
prepare for trial.
{¶17} The decision whether to remove court-appointed counsel and allow
substitution of new counsel is within to the sound discretion of the trial court; its
decision will not be reversed on appeal absent an abuse of discretion. State v.
Murphy, 91 Ohio St. 3d 516, 523, 747 N.E.2d 765 (2001); State v. Brown, 7th Dist.
No. 12 MA 198, 2014-Ohio-4420, ¶ 7. An “abuse of discretion” implies an arbitrary,
unreasonable, or unconscionable attitude on the part of the court. State v. Adams,
62 Ohio St. 2d 151, 404 N.E.2d 144 (1980).
{¶18} An indigent defendant does not have a right to choose a particular
attorney; rather, such a defendant “has the right to professionally competent,
effective representation.” State v. Evans, 153 Ohio App. 3d 226, 2003–Ohio–3475,
792 N.E.2d 757, ¶ 30 (7th Dist.), citing State v. Murphy, 91 Ohio St. 3d 516, 523, 747
N.E.2d 765 (2001). “Competent representation does not include the right to develop
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and share a ‘meaningful attorney-client relationship’ with one's attorney.” State v.
Gordon, 149 Ohio App. 3d 237, 2002-Ohio-2761, 776 N.E.2d 1135, ¶ 12 (1st Dist.).
{¶19} In order for the court to discharge a court-appointed attorney, “the
defendant must show a breakdown in the attorney-client relationship of such
magnitude as to jeopardize the defendant's right to effective assistance of counsel.”
State v. Henness, 79 Ohio St. 3d 53, 65, 679 N.E.2d 686 (1997), quoting State v.
Coleman, 37 Ohio St. 3d 286, 525 N.E.2d 792 (1988), paragraph four of the syllabus.
That said, the right to counsel must be balanced against the court's authority to
control its docket, as well as its awareness that a “demand for counsel may be
utilized as a way to delay the proceedings or trifle with the court.” United States v.
Krzyske, 836 F.2d 1013, 1017 (C.A.6 1988); see, also, State v. Murphy, 91 Ohio
St.3d 516, 523, 747 N.E.2d 765 (2001).
{¶20} On the day of trial, September 26, 2016, counsel for Appellant renewed
Appellant’s motion for appointment of new counsel. The original motion had been
made one week prior to trial at the September 21, 2016 pretrial hearing. The pretrial
hearing was not transcribed for our review. However, on the day of trial the events
that transpired at the September 21, 2016 pretrial were discussed in conjunction with
the renewed request to appoint new counsel. Trial Tr. 8-18. The basis for the
original motion and the renewed motion was a complete breakdown of
communication between trial counsel and Appellant. Trial Tr. 8-9. Trial counsel
indicated that since the indictment Appellant had refused to communicate with
counsel. Trial Tr. 9. The trial court overruled the motion because Appellant was
causing counsel to be ineffective:
He’s entitled to the effective assistance of counsel but he cannot cause
the ineffectiveness by his refusal to cooperate. He can’t make you
ineffective and then argue that counsel is ineffective. So his refusal to
converse with you is not a grounds for removing you.
Trial Tr. 13.
{¶21} Appellant argues the above demonstrates there was a complete
breakdown of communication that warranted the appointment of new counsel.
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Furthermore, he contends the trial court abused its discretion when it did not permit
him to address the court about his complaint with his attorney.
{¶22} The Tenth Appellate District has stated, “when a defendant expresses
concerns or complaints regarding appointed counsel, the trial court has a duty to
inquire into the nature of the complaint, make such inquiry a part of the record, and
make a decision on the record.” State v. Bowman, 10th Dist. No. 06AP-149, 2006-
Ohio-6146, ¶ 35. When the motion was renewed on the day of trial, the trial court did
instruct Appellant not to answer or say anything unless he was called upon. Trial Tr.
8. A reading of the trial transcript reveals this instruction was given because at the
September 21, 2016 pretrial, when the motion for new counsel was made Appellant
did not act appropriately:
THE COURT: The pretrial was last Thursday?
MR. MASZCZAK [the prosecutor]: Wednesday.
THE COURT: Wednesday. Mr. Brown, you are not to answer or to say
anything unless you’re called upon. I’m talking to your lawyer. So I
don’t want you answering anything.
If you do, if you act inappropriately at trial – the only reason that
I’m mentioning this to you, normally I don’t have to do this, is because
of your conduct the other day at the pretrial.
When we’re in trial and I have a jury sitting here, any type of
misconduct by you at any time, you blurting something out, you
laughing, you shaking your head, you disagreeing, you showing
anything but sitting there like a perfect gentleman is going to result in a
contempt of court charge. So I want you to be aware of that. I’m not
somebody to mess around with.
The rules by this court are going to be followed by everybody.
So you are not permitted to respond, react, show disappointment or
approval or disapproval, or whatever. You just – your place is to watch
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this; let this thing go on. If you choose to participate, that would be by
testifying. It’s not by anything else. So I don’t want to hear your voice
again while I’m talking to these lawyers. Okay. Go ahead.
Trial Tr. 8-9.
{¶23} The trial court also noted at the sentencing hearing the inappropriate
behavior at the pretrial:
During the course of the trial the court – let me say this first: To listen
to you today and to listen to you at your pretrial last week is like you’re
two different people. You’re a whole lot different today than you were
last week. It kind of fascinates me. I don’t really understand why. I
don’t really care to know why. But two completely different people.
Sentencing Tr. 12.
{¶24} Furthermore, the statement given before the start of trial was not the
only time in this case a court had to admonish Appellant. At the initial appearance,
Judge Houser found Appellant in direct contempt of court:
Defendant found in direct contempt of court for statements made
to the court while walking away from the bench. The court had him
returned to the bench and gave the defendant the opportunity to clarify
his comments or recant them. The defendant did neither.
The defendant was found in direct contempt and sentenced to 5
days in jail to commence immediately.
8/2/16 J.E.
{¶25} Thus, the record in this case indicates the trial court was warranted in
directing Appellant to remain quiet when the motion to appoint new counsel was
renewed by counsel; Appellant’s past behavior warranted such instruction.
{¶26} That said, the trial court did permit to Appellant to express his concerns
about counsel on the record and the court inquired about those concerns on the
record. This occurred at the September 21, 2016 pretrial. Although the transcript of
the pretrial was not made a part of the record, the trial transcript and the judgment
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entry following the September 21, 2016 pretrial indicate at the pretrial the trial court
heard from Appellant, inquired about his concerns, and ruled on the motion to appoint
new counsel. When the motion was renewed, the trial court indicated the same
argument was made at the pretrial and overruled. Trial Tr. 12. Counsel indicated
Appellant wanted him to reraise the issue because Appellant did not believe he was
allowed to make motions. Trial Tr. 12-13. In response the court stated, “Well, he’s
wrong about that. Because the record will bear out that I did go through all of the so-
called motions that he wanted to present to the court, one of which was dismissing
you.” Trial Tr. 12-13. The judgment entry following the September 21, 2016 pretrial
also indicates all of Appellant’s motions, including the one requesting new counsel,
were addressed by the court:
The Court is in receipt of a letter sent from Defendant, an inmate
at the Mahoning County Justice Center. Said letter was opened by the
Court this date and reviewed by the Court in open Court during this
proceeding. This letter requested that counsel for Defendant, Attorney
Edward Hartwig, be removed as counsel of record for Defendant and
requested that a bond be set in this matter.
The State of Ohio addressed the Court regarding the letter, as
did Defendant and his counsel.
9/27/16 J.E.
{¶27} The judgment entry further stated Appellant addressed the court
regarding issues related to the case without consulting defense counsel. The court
considered those arguments and gave Appellant the choice to proceed pro se or with
counsel. Appellant did not want to speak to his attorney, but did not want to proceed
pro se. The court then addressed and overruled three pro se requests made by
Appellant. The judgment entry indicated the case would proceed to trial on
September 26, 2016. 9/27/16 J.E.
{¶28} Consequently, the record does indicate the trial court heard from
Appellant, inquired into his concerns about counsel, and ruled on the request.
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Therefore, Appellant’s argument that the trial court did not let him air his concerns
about trial counsel fails.
{¶29} Defense counsel does state on the record that since Appellant was
indicted he refused to communicate with him to assist in the defense. Trial Tr. 9-10.
This statement does show there was a lack of communication between Appellant and
defense counsel. However, as the trial court noted, this lack of communication was
caused by Appellant. In some instances, the failure to cooperate and communicate
with counsel is nothing more than “stalling” and “playing games with the court.” State
v. Hollingsworth, 10th Dist. Nos. 07AP-863, 07AP-864, 07AP-865, 2008-Ohio-2424,
¶7.
{¶30} In addition to noting Appellant was the cause for the lack of
communication with defense counsel, the trial court discussed the complexity of this
case. The trial court noted this is a simple case; it’s a he said/she said type of case,
there is no issue of identity, and there is no scientific evidence, such as fingerprinting,
forensics, or DNA. Trial Tr. 10-12. Defense counsel noted, at most, there is a
potential self-defense claim. Trial Tr. 11. This is an accurate statement of the
complexity of the case.
{¶31} Given the trial court’s reasoning for both Appellant’s actions and the
complexity of the case, we conclude the trial court did not abuse its discretion in
denying the motion to appoint new counsel.
{¶32} Appellant’s next argument under this assignment of error is the trial
court abused its discretion when it denied his request for a continuance. Appellant
requested a continuance after the trial court denied the renewed motion to appoint
new counsel. Trial Tr. 13-14. Appellant wanted additional time to prepare for trial
since the motion to appoint new counsel was denied. The trial court overruled the
continuance request. Appellant contends the trial court’s denial of the continuance
was based on its blanket policy to not grant any continuances after the final pretrial
hearing.
{¶33} “The grant or denial of a continuance is a matter which is entrusted to
the broad, sound discretion of the trial judge. An appellate court must not reverse the
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denial of a continuance unless there has been an abuse of discretion.” State v.
Unger, 67 Ohio St. 2d 65, 67, 423 N.E.2d 1078 (1981).
{¶34} In assessing whether the trial court abused its discretion in denying
appellant's request for a continuance, we consider: (1) the length of the delay
requested; (2) whether other continuances have been requested and received; (3)
the inconvenience to litigants, witnesses, opposing counsel and the court; (4)
whether the requested delay is for legitimate reasons or whether it is dilatory,
purposeful, or contrived; (5) whether appellant contributed to the circumstance which
gives rise to the request for a continuance; and (6) other relevant factors, depending
on the unique facts of each case. Id. at 67–68.
{¶35} The United States Supreme Court has stated, “There are no
mechanical tests for deciding when a denial of a continuance is so arbitrary as to
violate due process. The answer must be found in the circumstances present in every
case, particularly in the reasons presented to the trial judge at the time the request is
denied.” Ungar v. Sarafite, 376 U.S. 575, 589, 84 S. Ct. 841, (1964).
{¶36} In considering both Ungar and Unger, we conclude the trial court did
not abuse its discretion in denying the motion to continue. Although this was the first
continuance requested and there would not be too much inconvenience to the
witnesses and state, the request was made moments before the trial was scheduled
to start. Appellant’s failure to communicate was the reason for the request; the
reason for the request was dilatory and contrived. Although the trial court did indicate
continuances are granted at pretrial and insinuated it was the policy of the court to
not grant one after the final pretrial, the trial court’s primary reason for denying this
continuance motion was because it believed Appellant was “manipulating the
process” of the court. Trial Tr. 14. The motion for new counsel was made at the
pretrial and was denied. Appellant did not ask for a continuance at the pretrial, but
instead waited until moments before trial to move for a continuance to allow him and
his counsel to prepare a defense. Appellant had refused to communicate with his
counsel following his indictment up until the renewed motion for new counsel. He
refused to communicate with his counsel even after he was told at the pretrial hearing
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that new counsel would not be appointed and trial was scheduled for the following
week:
THE COURT: But see, he’s manipulating the process of this court. * * *
He is one of defiance and rejection of anything and everything rather
than to listening. That’s what it appears to be.
The court went through great lengths to explain the process to
him. And nonetheless, there was nothing but rejection of anything that I
had to say; and apparently whatever you had to say. But last
Wednesday we discussed the fact that this case was going forward
today. * * *
So I don’t see where more time would provide any particular
advances. I explained to the defendant last week that you were
appointed counsel. And I’m not going to grant him some other lawyer
that he wouldn’t talk to either. He just doesn’t want to talk to anybody.
And he hasn’t hired one. So that’s the end of that story I guess. What
else?
Trial Tr. 14-17.
{¶37} Given the trial court’s reasoning and the circumstances in this case, the
trial court did not abuse its discretion in denying the motion for continuance.
{¶38} For the reasons expressed above, this assignment of error is meritless.
Second Assignment of Error
“The conviction for menacing by stalking was based on insufficient evidence
as a matter of law.”
{¶39} Sufficiency of the evidence is a question of law dealing with legal
adequacy of the evidence. State v. Thompkins, 78 Ohio St. 3d 380, 386, 678 N.E.2d
541 (1997). It is the legal standard applied to determine whether the case may go to
the jury or whether the evidence is legally sufficient as a matter of law to support the
verdict. State v. Smith, 80 Ohio St. 3d 89, 113, 684 N.E.2d 668 (1997). In viewing a
sufficiency of the evidence argument, the evidence and all rational inferences are
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evaluated in the light most favorable to the prosecution. State v. Goff, 82 Ohio St. 3d
123, 138, 694 N.E.2d 916 (1998). A conviction cannot be reversed on grounds of
sufficiency unless the reviewing court determines no rational juror could have found
the elements of the offense proven beyond a reasonable doubt. Id.
{¶40} Menacing by stalking is defined as:
No person by engaging in a pattern of conduct shall knowingly cause
another person to believe that the offender will cause physical harm to
the other person or a family or household member of the other person
or cause mental distress to the other person or a family or household
member of the other person. In addition to any other basis for the other
person's belief that the offender will cause physical harm to the other
person or the other person's family or household member or mental
distress to the other person or the other person's family or household
member, the other person's belief or mental distress may be based on
words or conduct of the offender that are directed at or identify a
corporation, association, or other organization that employs the other
person or to which the other person belongs.
R.C. 2903.211(A)(1).
{¶41} The indictment names Celeste Wolfe as the victim of the menacing by
stalking charge. Menacing by stalking requires a “pattern of conduct.” Appellant
states there was no evidence of a “pattern of conduct” regarding Celeste. He argues
the only event was the waving of the gun in the street. The state contends the
“pattern of conduct” included the punching of Celeste in the face, which resulted in
the felonious assault conviction, and the waving of the gun in the street incident that
happened shortly after the felonious assault. Appellant does not explain why the
assault is not considered part of menacing by stalking.
{¶42} “Pattern of conduct” is defined by statute as, “two or more actions or
incidents closely related in time, whether or not there has been a prior conviction
based on any of those actions or incidents.” R.C. 2903.211(D)(1). Given this
definition the felonious assault of Celeste can be considered part of the “pattern of
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conduct.” Therefore, if the felonious assault meets the other requirements in the
statute, such as being close in time and Celeste believing Appellant would harm her,
then the state provided sufficient evidence of a “pattern of conduct.”
{¶43} We conclude the state provided sufficient evidence the felonious
assault was close in time to the gun waving incident. The evidence at trial was the
two incidents occurred on the same night and probably within an hour time span. Two
appellate districts have stated there is “no requirement that the pattern of conduct be
proved by events from two different days.” State v. Chandler, 1st Dist. No. C–030008,
2004–Ohio–248, ¶ 10, citing State v. Scruggs, 136 Ohio App. 3d 631, 634, 737
N.E.2d 574 (2d Dist.2000). Since “closely related in time” is not defined by the
statute, the trier of fact is permitted to determine what is “closely related in time” on a-
case-by-case basis. State v. Thomas, 1st Dist. Nos. C-130620, C-130623, C-
130621, C-130624, C-130622, 2014-Ohio-2803, ¶ 9, citing Ellet v. Falk, 6th Dist. No.
L–09–1313, 2010–Ohio–6219, ¶ 22.
{¶44} The state presented evidence the punching incident occurred at the
house. Appellant left and then Celeste, Jeronica, and a few other people went to find
Appellant because he took Celeste’s car keys. They found him on Judson Avenue
where he waved a gun at them and said he would kill them. This is sufficient
evidence the events were close in time and not just one event. The jury could
determine the separate locations and separate times established a “pattern of
conduct.”
{¶45} Menacing by stalking also requires the offender to cause the other
person to believe the offender will cause physical harm to the other person or a
family member. Celeste Wolfe testified that when the gun incident occurred she
believed Appellant would cause her additional physical harm; she was concerned he
would shoot her. Trial Tr. 210. As to the felonious assault, Celeste did not testify she
believed Appellant would cause her physical harm or mental distress. However, that
specific testimony was not the only means to provide evidence of belief of harm.
State v. Boden, 7th Dist. No. 01 JE 9, 2002-Ohio-5043, ¶ 19 (indicating prior assault,
offender being bigger than victim, and repeated contacts with offender could support
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the conclusion offender caused the victim to be in fear of physical harm). Belief of
harm can be evinced by past events, size differences between the perpetrator and
victim, and other factors. Id.
{¶46} Celeste indicated there was a loud argument between her mother and
Appellant; she was upstairs while they were downstairs and she could easily hear the
argument. Trial Tr. 208. She went down stairs to try to “move” her mother away from
Appellant. Trial Tr. 221. She knew because of her size and his size she would not be
able to “remove” him from the house, so she just asked him to leave and that is when
he “charged” her on the steps. Trial Tr. 220. In comparing the assaults on Celeste
and Krystal, Jeronica testified because of the size differences Appellant injured
Celeste, but “he couldn’t do nothing to Krystal.” Trial Tr. 195. Since Celeste testified
at trial, the jury was able to see Celeste’s size compared to Appellant’s size. Both
Jeronica and Celeste also testified Appellant kept hitting Celeste and then
immediately left. Trial Tr. 182, 208. Celeste had to be taken to the emergency room
because of the assault; she lost consciousness, suffered a broken nose, and had a
facial laceration. Trial Tr. 187, 213, 236.
{¶47} The above evidence is sufficient to show Appellant was bigger and
stronger than Celeste, there was a loud argument between her mother and Appellant,
Celeste wanted to move her mother away from Appellant, and the assault happened
quickly. This was sufficient evidence to establish Appellant caused Celeste to be
afraid for her physical safety and for her mother’s.
{¶48} This assignment of error is meritless; the state met its burden of
production for the menacing by stalking charge.
Third Assignment of Error
“The trial court below committed error prejudicial to defendant by failing to
properly follow the sentencing criteria set forth in O.R.C. Section 2929 resulting in Mr.
Brown receiving a sentence which is contrary to law.”
{¶49} Appellate courts review felony sentences under the standard set forth in
R.C. 2953.08(G)(2). State v Marcum, 146 Ohio St. 3d 516, 2016–Ohio–1002, 59
N.E.3d 1231, ¶ 1. Under R.C. 2953.08(G)(2) an “appellate court may vacate or
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modify a felony sentence on appeal only if it determines by clear and convincing
evidence that the record does not support the trial court's findings under relevant
statutes or that the sentence is otherwise contrary to law.” Id.
{¶50} When a trial court imposes consecutive sentences it must make the
required R.C. 2929.14(C)(4) findings at the sentencing hearing, and it must
incorporate those findings into the sentencing entry. State v. Bonnell, 140 Ohio St. 3d
209, 2014–Ohio–3177, 16 N.E.3d 654, ¶ 29. We have previously explained R.C.
2929.14(C)(4) requires a sentencing court to find: “(1) consecutive sentences are
necessary to protect the public from future crime or to punish the offender, (2) that
consecutive sentences are not disproportionate to the seriousness of the defendant's
conduct and to the danger he poses to the public, and (3) one of the findings
described in subsections (a), (b) or (c).” State v. Jackson, 7th Dist. No. 15 MA 93,
2016–Ohio–1063, ¶ 13. Subsections (a), (b), and (c) provide:
(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one
or more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the
courses of conduct adequately reflects the seriousness of the offender's
conduct.
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
R.C. 2929.14(C)(4)(a)–(c).
{¶51} Appellant does not dispute the trial court made the first two required
findings. His argument instead focuses on the third required finding – a finding of
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either (a), (b), or (c). Appellant asserts the trial court made no division (a) finding and
the record does not support the trial court’s division (b) finding. As such, he contends
the sentence is contrary to law.
{¶52} Appellant is correct the trial court did not make a division (a) finding.
However, the trial court did make a division (b) and (c) finding. At the sentencing
hearing, it stated, “The court further finds that the harm in this case was so great or
unusual that a single term does not adequately reflect the seriousness of the
offender’s conduct, and that his criminal history shows that consecutive terms are
needed to protect the public." Sentencing Tr. 16. In the judgment entry it stated:
The Court further finds that pursuant to O.R.C. 2929.14(C)(4)(b) at least
two of the multiple offense were committed as part of one or more
courses of conduct, and the harm caused by the two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the
courses of conduct adequately reflects the seriousness of the offender’s
conduct; and finds pursuant to O.R.C. 2929.14(C)(4)(c) that the
offender’s history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the
offender.
10/7/16 J.E.
{¶53} The trial court was only required to make one finding, either (b) or (c).
Appellant does not argue the (c) finding was not supported by the record. As such,
his argument fails because even if we could conclude the (b) finding was not
supported by the record, the (c) finding was made and it was supported by the
record.
{¶54} That said, it is noted that both findings are easily supported by the
record. The trial court discussed Appellant’s criminal record at the sentencing
hearing. Sentencing Tr. 7. He has a 1999 juvenile adjudication for aggravated
robbery, a 2000 attempted drug abuse conviction, a 2003 carrying a concealed
weapon conviction, a 2006 misdemeanor obstructing conviction, a 2007
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misdemeanor assault conviction, a 2008 felony for unauthorized use of a motor
vehicle conviction, a 2013 weapons under disability conviction, and a 2016 fleeing
and alluding conviction. The court also indicated Appellant is a convicted felon and
was not permitted to have a firearm on his person. However, in committing the crime
of menacing by stalking he used a gun; Appellant admitted he had a gun and waved
it in the street. Sentencing Tr. 14-15. The court further noted Appellant has
previously served time in the penitentiary but continues to commit crimes.
Sentencing Tr. 15. Thus, the division (c) finding is supported by the record and was
not contrary to law.
{¶55} The division (b) finding is also supported by the record. The undisputed
facts of this case are Appellant punched Celeste multiple times breaking her nose,
lacerating her face, and causing her to lose consciousness. Appellant left the house
and when Celeste and Jeronica found him a little while later, Appellant waved a gun
at them in the middle of Judson Avenue and told them he would kill them. These
facts support a division (b) finding; the finding was not contrary to law.
{¶56} For those reasons, this assignment of error is meritless.
Conclusion
{¶57} All three assignments of error lack merit. The conviction is affirmed.
Waite, J., concurs.
DeGenaro, J., concurs.