State v. Browning

[Cite as State v. Browning, 2013-Ohio-2787.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26687
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
KENNETH R. BROWNING COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 12 05 1525
DECISION AND JOURNAL ENTRY
Dated: June 28, 2013
WHITMORE, Judge.
{¶1} Defendant-Appellant, Kenneth Browning, appeals from his conviction in the
Summit County Court of Common Pleas. This Court affirms in part and reverses in part.
I
{¶2} Shortly after 10:30 p.m. on March 23, 2002, the police responded to a call that a
man was attacking a woman on South Portage Path. The police identified the man as Browning
and the victim as his fiancée, Lisa Collins. Two eyewitnesses later testified that they observed
Browning assault Collins. Specifically, one saw Browning hitting Collins with his fists and the
other saw Browning knock Collins to the ground and kick her. Although Collins initially told
the police that Browning had thrown her to the ground and had kicked her, she later recanted and
insisted that Browning never hurt her.
{¶3} A grand jury indicted Browning on one count of domestic violence, in violation of
R.C. 2919.25(A). The matter proceeded to a jury trial, and the jury found Browning guilty of
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domestic violence. Additionally, the jury found that Browning previously had been convicted of
domestic violence. The court sentenced Browning to 18 months in prison.
{¶4} Browning now appeals and raises five assignments of error for our review. For
ease of analysis, we consolidate several of the assignments of error.
II
Assignment of Error Number One
THE TRIAL COURT ERRED BY DENYING MR. BROWNING’S CRIMINAL
RULE 29 MOTION FOR ACQUITTAL AS THE STATE FAILED TO
PRESENT SUFFICIENT EVIDENCE TO SUSTAIN THE CONVICTIONS.
{¶5} In his first assignment of error, Browning argues that the trial court erred by
denying his Crim.R. 29 motion because the State failed to produce sufficient evidence in support
of his conviction. We disagree.
{¶6} “We review a denial of a defendant’s Crim.R. 29 motion for acquittal by
assessing the sufficiency of the State’s evidence.” State v. Slevin, 9th Dist. No. 25956, 2012-
Ohio-2043, ¶ 15. 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, 61 Ohio St.3d 259, 273 (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; see also State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).
“In essence, sufficiency is a test of adequacy.” Thompkins at 386.
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{¶7} “No person shall knowingly cause or attempt to cause physical harm to a family
or household member.” R.C. 2919.25(A). “A person acts knowingly, regardless of his purpose,
when he is aware that his conduct will probably cause a certain result or will probably be of a
certain nature. A person has knowledge of circumstances when he is aware that such
circumstances probably exist.” R.C. 2901.22(B). Whoever commits the foregoing offense is
guilty of domestic violence. R.C. 2919.25(D)(1).
{¶8} Browning argues that his conviction is based on insufficient evidence because
there was no evidence that he knowingly caused physical harm to Collins. Browning’s argument
largely sounds in weight, as he challenges the evidence based on the reliability and credibility of
the witnesses. See State v. Johnson, 9th Dist. No. 06CA008911, 2007-Ohio-1480, ¶ 4-10
(discussing the differences between a sufficiency and a manifest weight challenge).
Nevertheless, we briefly address Browning’s assertion that his conviction is based on insufficient
evidence.
{¶9} Two separate eyewitnesses testified at trial. Delissa Fleetwood testified that she
and her husband were walking their dog when she observed a man hitting a woman with his fists
while the woman “was saying she was sorry and hollering and screaming.” Fleetwood testified
that the man continued to hit the woman until her husband pulled the man away. Fleetwood
identified Browning as the man she saw attacking the woman.
{¶10} Sandra Safko testified that she was driving home from work when a woman ran
toward her truck screaming for help. Safko stopped her truck and then saw a man grab the
woman, knock her to the ground, and drag her across the street. Safko heard the man screaming
at the woman and saw the man kick her. Safko then drove to a nearby parking lot and called
911. Safko testified that she drove back to the scene of the attack while on the phone with 911
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and that the man continued to assault the woman until another man pulled him off of her. Safko
identified Browning as the man she saw attacking the woman.
{¶11} Officer Patrick Didyk testified that he responded to a 911 call about an attack in
progress on South Portage Path. Another officer was already on scene when Officer Didyk
arrived, but Officer Didyk testified that he spoke directly with the victim, Lisa Collins. Officer
Didyk described Collins as “visibly upset” and crying when he spoke with her. Collins told
Officer Didyk that Browning, her live-in boyfriend, had thrown her to the ground and had kicked
her in the head. Officer Didyk testified that he observed a small amount of swelling to Collins’
head as well as a scrape to her elbow.
{¶12} Viewing the evidence in a light most favorable to the prosecution, a rational trier
of fact could have concluded that the State set forth sufficient evidence to prove that Browning
committed domestic violence against Collins. Two separate eyewitnesses testified that they saw
Browning either kick or punch Collins after knocking her to the ground. Moreover, Officer
Didyk testified that Collins admitted to him that Browning had thrown her to the ground and
kicked her. He also observed several injuries on Collins. Browning’s argument that there is
insufficient evidence that he knowingly caused physical harm to Collins lacks merit.
Consequently, his first assignment of error is overruled.
Assignment of Error Number Two
THE JURY VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
{¶13} In his second assignment of error, Browning argues that his conviction is against
the manifest weight of the evidence. We disagree.
{¶14} In determining whether a conviction is against the manifest weight of the
evidence an appellate court:
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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). A weight of the evidence challenge
indicates that a greater amount of credible evidence supports one side of the issue than supports
the other. Thompkins, 78 Ohio St.3d at 387. Further, when reversing a conviction on the basis
that the conviction was against the manifest weight of the evidence, the appellate court sits as the
“thirteenth juror” and disagrees with the factfinder’s resolution of the conflicting testimony. Id.
Therefore, this Court’s “discretionary power to grant a new trial should be exercised only in the
exceptional case in which the evidence weighs heavily against the conviction.” State v. Martin,
20 Ohio App.3d 172, 175 (1st Dist.1983). See also Otten, 33 Ohio App.3d at 340.
{¶15} Browning argues that his conviction is against the manifest weight of the evidence
because the State’s witnesses offered inconsistent and unreliable testimony. He further argues
that his conviction is against the manifest weight of the evidence because Collins testified that he
never harmed her.
{¶16} As to Fleetwood, Browning argues that she was not a reliable witness because,
unlike her husband, she stayed some distance back from Browning and Collins and might have
misinterpreted what she saw. He further argues that she gave inconsistent testimony because at
one point she claimed she was near her husband the entire time, but then later she stated that she
left the area for a while to take their dog back home. As to Safko, Fleetwood argues that she was
not a reliable witness because she admitted that she was very tired when the incident occurred, it
was dark outside, and that at certain points she might have been viewing the incident from up to
three blocks away. He further argues that she gave inconsistent testimony because: (1) while she
6
described the clothing Collins was wearing that evening at trial, she admitted that she had not
been able to describe the clothing on the 911 call; and (2) while she claimed that Collins tried to
approach her at the scene to thank her for helping, Collins adamantly denied ever trying to speak
with Safko.
{¶17} Collins testified that Browning was her fiancée and that the two still planned to
marry. According to Collins, she and Browning were on their way home from a bar on the night
of the incident and were “playing and horsing around” when she tripped on the sidewalk and fell
down. Collins insisted that Browning never harmed her and that all of the State’s witnesses were
lying. Indeed, Collins described herself as the aggressor in her and Browning’s relationship and
testified that she previously had a protection order issued against her because she had stabbed
Browning in the face with a screwdriver. Collins denied ever telling the police that Browning
had harmed her and insisted that the police frequently harassed her and Browning. According to
Collins, the entire incident that occurred amounted to a misunderstanding.
{¶18} The inconsistencies that Browning identifies in the testimonies of the State’s
witnesses are minor, at best. Moreover, credibility determinations are primarily for the trier of
fact. State v. Wingate, 9th Dist. No. 26433, 2013-Ohio-2079, ¶ 18, quoting State v. Shue, 97
Ohio App.3d 459, 466 (9th Dist.1994). “[T]his Court will not overturn [a jury’s] verdict on a
manifest weight of the evidence challenge simply because the [jury] chose to believe certain
witnesses’ testimony over the testimony of others.” State v. Ross, 9th Dist. No. 12CA0007,
2013-Ohio-522, ¶ 16. The jury heard two different versions of the events here; one from the
independent witnesses the State produced and one from Collins. Collins admitted that she was in
love with Browning and still planned to marry him. Consequently, the jury could have chosen to
believe that Collins refused to tell the truth about the attack in order to protect Browning.
7
Having reviewed the entire record, this is not the exceptional case where the jury lost its way by
convicting Browning. Browning’s argument that his conviction is against the manifest weight of
the evidence lacks merit. Consequently, his second assignment of error is overruled.
Assignment of Error Number Three
THE TRIAL COURT ERRED IN PERMITTING THE STATE TO
INTRODUCE OUT-OF-COURT STATEMENTS OF AN ALLEGED
EYEWITNESS THROUGH THE PLAYING OF A 911 CALL WHICH DID
NOT MEET THE ADMISSIBILITY REQUIREMENTS OF EVIDENCE RULE
804.
Assignment of Error Number Four
THE TRIAL COURT VIOLATED MR. BROWNING’S RIGHT TO A FAIR
TRIAL UNDER THE FOURTEENTH AMENDMENT AND THE SIXTH
AMENDMENT’S RIGHT TO CONFRONT WITNESSES BY THE IMPROPER
ADMISSION INTO EVIDENCE OF HEARSAY STATEMENTS OF MR.
FLEETWOOD[.]
{¶19} In his third and fourth assignments of error, Browning argues that the court erred
by allowing the State to play a 911 call from Fleetwood’s husband, as he did not testify at trial.
Specifically, Browning argues that the call amounted to inadmissible hearsay and violated his
rights under the Confrontation Clause.
{¶20} Crim.R. 52(A) provides that “[a]ny error, defect, irregularity, or variance which
does not affect substantial rights shall be disregarded.” “Before constitutional error can be
considered harmless, we must be able to ‘declare a belief that it was harmless beyond a
reasonable doubt.’” State v. Brown, 65 Ohio St.3d 483, 485 (1992), quoting Chapman v.
California, 386 U.S. 18, 24 (1967).
{¶21} Assuming without deciding that the trial court erred by admitting the 911 call
from Fleetwood’s husband, we must conclude that the error was harmless beyond a reasonable
doubt. In the 911 call, Fleetwood’s husband provides the 911 dispatcher with his location in the
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event the police want to talk to him. Fleetwood’s husband also conveys to the dispatcher that he
witnessed a man “beating this girl up” and “had to pull [the man] off of her.” Browning has not
explained how the introduction of the call prejudiced him in light of the other testimony at trial.
See App.R. 16(A)(7). The contents of the call merely reiterate Fleetwood’s and Safko’s
description of the events at trial. Therefore, at most, the introduction of the call would amount to
harmless error and would not warrant reversal. See State v. Reives-Bey, 9th Dist. No. 25138,
2011-Ohio-1778, ¶ 14 (harmless error applied to hearsay challenge); State v. Hartney, 9th Dist.
No. 25078, 2010-Ohio-4331, ¶ 25-27 (harmless error applied to Confrontation Clause challenge).
Browning’s third and fourth assignments of error are overruled.
Assignment of Error Number Five
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
ASSESSING COURT COSTS AGAINST DEFENDANT WITHOUT
COMPLYING WITH R.C. 2947.23(A)[.]
{¶22} In his fifth assignment of error, Browning argues that the trial court failed to
comply with R.C. 2947.23 when it assessed court costs against him in the absence of the
community service notifications set forth in the statute. We agree.
{¶23} Former R.C. 2947.23(A)1 provides, in relevant part:
(A)(1) In all criminal cases, * * *, the judge or magistrate shall include in the
sentence the costs of prosecution, including any costs under section 2947.231 of
the Revised Code, and render a judgment against the defendant for such costs. At
the time the judge or magistrate imposes sentence, the judge or magistrate shall
notify the defendant of both of the following:
(a) If the defendant fails to pay that judgment or fails to timely make payments
towards that judgment under a payment schedule approved by the court, the court
may order the defendant to perform community service in an amount of not more
than forty hours per month until the judgment is paid or until the court is satisfied
that the defendant is in compliance with the approved payment schedule.
1
R.C. 2947.23(A) was amended effective May 22, 2013, and no longer requires notification to
defendants that are sentenced to incarceration.
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(b) If the court orders the defendant to perform the community service, the
defendant will receive credit upon the judgment at the specified hourly credit rate
per hour of community service performed, and each hour of community service
performed will reduce the judgment by that amount.
A trial court must advise a defendant of the foregoing community service notifications at the
sentencing hearing. State v. Ibn-Ford, 9th Dist. No. 26386, 2013-Ohio-2172, ¶ 77-78. “[I]t is
reversible error for a trial court to fail to comply with the community service notifications of
R.C. 2947.23(A)(1)(a) & (A)(1)(b) * * *.” State v. Ross, 9th Dist. No. 25778, 2012-Ohio-1389,
¶ 28.
{¶24} The record reflects that the trial court imposed costs upon Browning, but did not
inform him at his sentencing hearing that his failure to pay them could result in the imposition of
community service or that he would receive credit toward the costs from any community service
so imposed. As such, the trial court did not comply with the community service notifications set
forth in former R.C. 2947.23. Ibn-Ford at ¶ 78. The “proper remedy” for a trial court’s failure
to comply with the notification provisions of R.C. 2947.23 “is to reverse the trial court’s
imposition of court costs and remand for the proper imposition of court costs in accordance with
the requirements set forth in [the statute].” State v. Debruce, 9th Dist. No. 25574, 2012-Ohio-
454, ¶ 38. Accordingly, Browning’s fifth assignment of error is sustained and, upon remand, the
trial court must comply with the notice requirements of former R.C. 2947.23.
III
{¶25} Browning’s fifth assignment of error is sustained. His remaining assignments of
error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed in
part, reversed in part, and the cause is remanded for further proceedings consistent with the
foregoing opinion.
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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 Summit, 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.
BETH WHITMORE
FOR THE COURT
MOORE, P. J.
BELFANCE, J.
CONCUR.
APPEARANCES:
LEE A. SCHAFFER, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.