State v. Brown

[Cite as State v. Brown, 2013-Ohio-5112.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26490
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
MICHAEL E. BROWN COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 11 03 0741
DECISION AND JOURNAL ENTRY
Dated: November 20, 2013
BELFANCE, Presiding Judge.
{¶1} Defendant-Appellant Michael E. Brown Jr. appeals from the judgment of the
Summit County Court of Common Pleas. For the reasons set forth below, we affirm in part,
reverse in part, and remand the matter for further proceedings.
I.
{¶2} Based upon events that took place on March 19, 2011, Mr. Brown was indicted on
one count of retaliation in violation of R.C. 2921.05(A), a third-degree felony, one count of
resisting arrest in violation of R.C. 2921.33(A), a second-degree misdemeanor, one count of
disorderly conduct in violation of R.C. 2917.11(A)(1), a fourth-degree misdemeanor, and one
count of aggravated menacing in violation of R.C. 2903.21, a first-degree misdemeanor. The
case proceeded to a jury trial after which the jury found Mr. Brown guilty of all counts. Mr.
Brown was sentenced to an aggregate term of two years in prison.
{¶3} Mr. Brown has appealed, raising two assignments of error for our review.
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II.
ASSIGNMENT OF ERROR I
APPELLANT MICHAEL E. BROWN’S CONVICTIONS WERE AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶4} Mr. Brown asserts in his first assignment of error that his convictions are against
the manifest weight of the evidence. We do not agree.
{¶5} In reviewing a challenge to the weight of the evidence, the appellate court
[m]ust 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).
{¶6} All the charges at issue stem from events that took place on March 19, 2011, and
center around Mr. Brown and his interactions with Officer Howard Vaughn of the Akron Police
Department. Officer Vaughn and Mr. Brown were acquainted with each other from high school,
but the two men did not have any difficulties with each other until February 2000.
{¶7} Officer Vaughn testified at trial and discussed his various interactions with Mr.
Brown. On February 19, 2000, after Officer Vaughn had finished his shift, he received a phone
call from Geeya Gibson, who was a friend of his best friend’s wife and was also the mother of
Mr. Brown’s son. Ms. Gibson was concerned that someone had broken into her car and knew
Officer Vaughn was a police officer. Officer Vaughn went over to investigate. While he was
doing so, Ms. Gibson saw Mr. Brown’s vehicle and became afraid. She told Officer Vaughn to
go inside her house because she did not know what Mr. Brown would do if he saw Officer
Vaughn. Mr. Brown came to the door and began yelling at Ms. Gibson, telling her to have her
visitor come outside. Mr. Brown also threatened to shoot Officer Vaughn’s truck. Officer
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Vaughn decided to call dispatch to report the situation. After a few minutes, Officer Vaughn
went to the door and asked Mr. Brown what the problem was. Realizing that Ms. Gibson’s
visitor was Officer Vaughn, Mr. Brown expressed his dislike for him. Mr. Brown then walked to
his vehicle and pulled out a gun. Officer Vaughn proceeded to pull out his gun and identified
himself as a police officer; however, Mr. Brown got into his car. At the time, Ms. Gibson’s
young son was begging Officer Vaughn not to shoot his father. As Mr. Brown was driving
away, he told Officer Vaughn that they could settle the argument later at a local school.
{¶8} As a result of that incident, Mr. Brown was charged and an arrest warrant was
issued. Sometime later, Officer Vaughn and his partner went to Mr. Brown’s home to effectuate
the warrant. They placed Mr. Brown in handcuffs, but, after running a computer search, realized
that Mr. Brown had turned himself in earlier that morning. Accordingly, they released Mr.
Brown.
{¶9} Officer Vaughn next encountered Mr. Brown on June 18, 2006. Officer Vaughn
was stopped at a light on his way home from church when Mr. Brown’s vehicle pulled up next to
his. Mr. Brown was laughing and told Officer Vaughn that he was still “going to kick [Officer
Vaughn’s] a**.” Officer Vaughn then drove away after making a comment to Mr. Brown.
{¶10} On August 4, 2007, Officer Vaughn and another officer were in uniform working
an off-duty job at a liquor store. Officer Vaughn was standing in front of the store keeping an
eye on the parking lot when Mr. Brown walked into the store and swore at Officer Vaughn.
When Mr. Brown left the store, he again threatened Officer Vaughn with physical harm.
Because Mr. Brown was blocking the entrance to the store and being disorderly, Officer Vaughn
told Mr. Brown that he had to leave. Mr. Brown seemed unconcerned and continued through
the parking lot cursing at Officer Vaughn. As Mr. Brown got in his vehicle, he told Officer
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Vaughn that Mr. Brown was “going to destroy [him].” The other officer who was present
testified similarly; however, he did not report that Mr. Brown threatened Officer Vaughn. At
that point, Officer Vaughn arrested Mr. Brown, and he was later charged and tried in Akron
Municipal Court by Judge Williams.
{¶11} Officer Vaughn again encountered Mr. Brown in March 2011. Events from that
day led to the charges at issue in the instant matter. Officer Vaughn had gone to Acme to drop
off some pants to be altered. Officer Vaughn happened to park next to Mr. Brown’s vehicle in
the Acme parking lot. As Officer Vaughn walked in front of Mr. Brown’s vehicle, Mr. Brown
began swearing at Officer Vaughn. Officer Vaughn told Mr. Brown that he was praying for him
and walked away. Mr. Brown followed Officer Vaughn and continued to yell at him. Mr.
Brown told Officer Vaughn that he was “going to spray [Officer Vaughn’s] house with bullets.”
Officer Vaughn asked if Mr. Brown was threatening him, and Mr. Brown indicated he was. Mr.
Brown added that there was nothing that Judge Williams could do about it and walked away into
the store. Officer Vaughn walked in behind Mr. Brown and proceeded to call the police. Officer
Vaughn testified that he has been afraid that Mr. Brown will carry out his threats against his
family and has taken various measures in attempts to ensure his family’s safety. Because Mr.
Brown confronted Officer Vaughn with a gun on a prior occasion and because Mr. Brown knows
where Officer Vaughn lives, Officer Vaughn took Mr. Brown’s threats seriously. Police officers
eventually arrived at the scene, but Mr. Brown had already left. Charges were filed against Mr.
Brown, but Officer Vaughn did not participate in the arrest because he did not want to further
aggravate the situation with Mr. Brown.
{¶12} Nevin Webb, an officer with the Akron Police Department, also testified at trial.
He responded to the Acme parking lot following the incident with Officer Vaughn and Mr.
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Brown. When he arrived, Mr. Brown was already gone, so he and other officers proceeded to try
to locate Mr. Brown pursuant a felony arrest warrant issued against him. Ultimately, Officer
Webb responded to 1119 Garman. Officer Webb knocked on the door, but there was no
response. When he noticed a person inside the residence peering out a window, he called for
backup. Eventually, the person came outside, shut the door, and identified himself as Mr.
Brown. Officer Webb asked Mr. Brown to tell him what happened at the Acme, but Mr. Brown
became more agitated and began using expletives and made threats against the police, in general,
and against Officer Vaughn specifically. At that point, Officer Webb told Mr. Brown that he
was under arrest. Mr. Brown became more angry and told Officer Webb that he had to go back
into the house for something. Mr. Brown then turned to open the door and go back inside.
Officer Webb was afraid that Mr. Brown was about to barricade himself inside, and, therefore,
grabbed Mr. Brown’s wrist and pulled him into the yard. Mr. Brown lost his balance and, when
he got up, he was even more upset; he began clenching his fists and “blad[ed]” his body “like he
was ready to fight.” Mr. Brown continued throughout the arrest to yell expletives and at one
point yelled that he was not going to be arrested. During this time, Officer Webb repeatedly told
Mr. Brown to get on the ground and that he was under arrest. When Officer Webb saw an
opportunity, he tackled Mr. Brown, and, at that time, Officer Harrison arrived and assisted with
handcuffing Mr. Brown. Officer Webb denied hitting or kicking Mr. Brown.
{¶13} Officer Joel Harrison testified that, when he arrived on the scene at 1119 Garman,
he observed Officer Webb and Mr. Brown standing in the yard facing each other. Officer
Harrison heard Officer Webb tell Mr. Brown to get on the ground and saw Mr. Brown take “a
fighting stance[.]” Within seconds, Officer Webb tackled Mr. Brown, and Officer Harrison
proceeded to assist Officer Webb in arresting him. Mr. Brown continued to struggle to avoid
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being handcuffed despite being told to stop resisting. Ultimately, the two officers were able to
handcuff Mr. Brown and place him in the cruiser. A sergeant of the Akron Police Department
who investigated the officers’ use of force recommended that it be found reasonable. The
sergeant interviewed several people including Mr. Brown, his wife, and a witness and concluded
that the officers did not hit or kick Mr. Brown.
{¶14} Mr. Brown disputed Officer Vaughn’s and Officer Webb’s version of events and
presented witnesses in support of his position. With respect to the 2000 incident, Ms. Gibson
testified that Officer Vaughn came over her house to visit but denied that she called him over to
investigate a break-in involving her car. She indicated that Mr. Brown then came over and began
knocking at the door, but she did not answer hoping he would leave. Ms. Gibson denied that her
son was present. Mr. Brown testified that he had come over to retrieve something from Ms.
Gibson’s house but no one answered the door. It was only as he was leaving that Officer
Vaughn came outside, made a statement to Mr. Brown, and started jumping around, yelling, and
waving his gun in the air. Ms. Gibson confirmed that she overheard Mr. Brown and Officer
Vaughn arguing. Mr. Brown testified that he then got in his car and left while Officer Vaughn
was in the street screaming. Mr. Brown called Ms. Gibson to talk to her about what happened,
but Officer Vaughn grabbed the phone. Mr. Brown told Officer Vaughn that they could settle
the dispute in a schoolyard. Mr. Brown also indicated that, when Officer Vaughn came to arrest
him regarding this incident, Officer Vaughn put a gun to his head and ordered him to the ground.
{¶15} With respect to the 2007 encounter, Mr. Brown maintains that he walked in and
out of the liquor store without speaking to Officer Vaughn and that it was Officer Vaughn that
followed Mr. Brown to his vehicle. Mr. Brown told Officer Vaughn he was going to call his
lawyer, and Officer Vaughn told Mr. Brown he was being disorderly. Mr. Brown was then
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arrested and charged. Mr. Brown testified to his attempts to try to clear himself of those charges
even after being convicted. These efforts included writing letters to the disciplinary committee,
the mayor’s office, various judges, and newspapers.
{¶16} Mr. Brown also discussed the 2011 incident at Acme. Mr. Brown testified that he
was going to Acme to buy coffee cleaner and was sitting in his car smoking when Officer
Vaughn pulled up next to him. According to Mr. Brown, Officer Vaughn walked up to Mr.
Brown’s vehicle, stopped, beat his chest, kissed his fingers, pointed to the sky, and told Mr.
Brown he was praying for him. Mr. Brown took that as a threat in response to Mr. Brown’s
actions to clear his name from the 2007 convictions. Mr. Brown got out of the car and swore and
told Officer Vaughn that he should be praying for himself. As they were walking in the store,
Mr. Brown told Officer Vaughn that he was going to sue him. Mr. Brown denied mentioning
Judge Williams and denied threatening Officer Vaughn. Mr. Brown bought the coffee cleaner
and went back home. Upon arriving home, Mr. Brown told his wife about running into Officer
Vaughn in the parking lot. Mr. Brown’s wife indicated that this made her concerned given the
prior incidents between Mr. Brown and Officer Vaughn.
{¶17} A while later, Mr. Brown heard knocking at the door. When he answered it there
was an officer standing there who began asking Mr. Brown about the Acme incident. After a
brief conversation, the officer indicated Mr. Brown was under arrest. Mr. Brown told the officer
he wanted to tell his wife and turned towards the door to do so and at that point was tackled by
the officer. Mr. Brown asserted that the officer then started hitting him. Mr. Brown proceeded
to get up, and the officer lost his balance. Mr. Brown indicated that he then put his hands up
because the officer appeared to be reaching for a weapon, but the officer charged him anyway
and tackled him. While the officer repeatedly told Mr. Brown to stop resisting, Mr. Brown kept
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insisting that he was not resisting. At that point another officer arrived and also jumped on top
of Mr. Brown. Ultimately, Mr. Brown was handcuffed and placed in a cruiser. Mr. Brown’s
wife testified that, during the arrest, Mr. Brown kept saying that he was not resisting and stated
that she never saw Mr. Brown taking a fighting stance. While he was in a cruiser, Officer Jeffrey
Ludle came over to Mr. Brown. Officer Ludle told Mr. Brown that he and Officer Vaughn
should settle their differences in a fight and also told Mr. Brown that, if he did not stop behaving
as he was, Officer Vaughn would end up shooting him someday. Officer Ludle also expressed a
similar sentiment to Mr. Brown’s wife.
{¶18} After a thorough review of the record, we cannot say that the jury lost its way in
convicting Mr. Brown of the charged offenses. The majority of Mr. Brown’s argument focuses
on credibility issues; notably, Mr. Brown does not generally assert, unless otherwise noted, that,
if it was reasonable to believe the State’s witnesses’ testimony, the evidence would not support a
conviction under the charged offenses. Mr. Brown was convicted of retaliation in violation of
R.C. 2921.05(A), which provides that
[n]o person, purposely and by force or by unlawful threat of harm to any person
or property, shall retaliate against a public servant, a party official, or an attorney
or witness who was involved in a civil or criminal action or proceeding because
the public servant, party official, attorney, or witness discharged the duties of the
public servant, party official, attorney, or witness.
“A person acts purposely when it is his specific intention to cause a certain result, or, when the
gist of the offense is a prohibition against conduct of a certain nature, regardless of what the
offender intends to accomplish thereby, it is his specific intention to engage in conduct of that
nature.” R.C. 2901.22(A). Additionally, Mr. Brown was found guilty of aggravated menacing
in violation of R.C. 2903.21(A). R.C. 2903.21(A) states that “[n]o person shall knowingly cause
another to believe that the offender will cause serious physical harm to the person or property of
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the other person, the other person’s unborn, or a member of the other person’s immediate
family.”
{¶19} With respect to these two convictions, Mr. Brown essentially asserts that his
version of events is more believable than Officer Vaughn’s and that Officer Vaughn’s testimony
concerning the early incidents between himself and Mr. Brown further undermines his credibility
as that testimony is also not believable. For example, Mr. Brown points out that not only does
Mr. Brown’s testimony contradict Officer Vaughn’s testimony concerning the 2000 encounter,
but so does Ms. Gibson’s.
{¶20} Due to the nature of this case, credibility determinations clearly played a critical
role in the jury reaching the outcome in this matter. At trial, the trier of fact is able to assess the
demeanor of witnesses and evaluate their testimony as they testify in open court. See State v.
Andrews, 9th Dist. Summit No. 25114, 2010-Ohio-6126, ¶ 28 (“The jury was able to observe the
witnesses’ demeanor during extensive testimony and use these observations to weigh the
credibility and resolve the conflicts in the testimony.”). Hence, a verdict is not against the
manifest weight of the evidence where the jury’s resolution of credibility is reasonable and
where the jury ultimately chose to believe the State’s witnesses as opposed to defense witnesses.
Id. In this case, we cannot say that the jury lost its way in finding Officer Vaughn’s version of
events more credible than Mr. Brown’s. Mr. Brown clearly presented a different version of the
various interactions he had with Officer Vaughn. Notably, he denied threatening to shoot at
Officer Vaughn’s house and denied mentioning Judge Williams at the Acme in reference to his
2007 convictions. However, we note that Officer Vaughn’s call to dispatch references both
facts. While it is possible that Officer Vaughn could have fabricated those facts, the jury, in
assessing his credibility, could have reasonably found that, because Officer Vaughn reported that
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information to dispatch so close in time to the incident, his version of events was more credible.
Thus, a jury could have reasonably inferred from the circumstances that Mr. Brown was
threatening Officer Vaughn in response to Officer Vaughn’s actions of arresting him in 2007 and
then testifying against him at a criminal proceeding; actions which resulted in Mr. Brown’ s prior
convictions. Moreover, at the time Mr. Brown was threatening to shoot at Officer Vaughn’s
house, Officer Vaughn stated that Mr. Brown referred to Judge Williams, who was the judge that
presided over that case. The jury also heard Mr. Brown’s own testimony that he feels strongly
that he was wrongly convicted for the events that happened in 2007. It also heard that Mr.
Brown utilized non-criminal mechanisms to address his concerns about those convictions, such
as writing letters and filing complaints. Contrary to Mr. Brown’s suggestion, even if the jury
believed he engaged in appropriate conduct, such does not require the conclusion that Mr. Brown
would not resort to illegal means to express his outrage. A trier of fact could reasonably find
that someone with such strong feelings would perhaps be more likely to threaten the person that
he felt led to his wrongful convictions. Accordingly, Mr. Brown’s convictions for retaliation and
aggravated menacing are not against the manifest weight of the evidence.
{¶21} Mr. Brown also asserts that his conviction for resisting arrest is against the
manifest weight of the evidence. R.C. 2921.33(A) states that “[n]o person, recklessly or by
force, shall resist or interfere with a lawful arrest of the person or another.” Mr. Brown again
asserts that his version of the events at his house is more credible than that of the officers. We
cannot say the jury was unreasonable in crediting the officers’ testimony over Mr. Brown’s. We
note that, while Mr. Brown claimed that Officer Webb hit him during the arrest, the sergeant
who investigated the use of force concluded that the officers did not hit or kick Mr. Brown and
recommended that their use of force be declared reasonable. Notably, the sergeant interviewed a
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neighbor, whom the sergeant indicated corroborated the officers’ version of events. The jury
could have found this testimony important in concluding that the officers’ testimony was more
reliable than Mr. Brown’s. While Mr. Brown denies that he took a fighting stance or clenched
his fists and denies that he resisted at all, there was evidence from which a jury could conclude
that Mr. Brown was in fact resisting a lawful arrest. We cannot say that the fact that the jury
found this evidence more compelling was unreasonable.
{¶22} Finally, Mr. Brown challenges his conviction for disorderly conduct. We note
that it is somewhat unclear from the record at trial at which location the State maintained that the
disorderly conduct took place: at the Acme or at Mr. Brown’s house during the arrest. We note
that, on appeal, Mr. Brown and the State focus on conduct that took place during the arrest, and,
thus, that is where we will also focus our analysis.
{¶23} R.C. 2917.11(A)(1) provides that “[n]o person shall recklessly cause
inconvenience, annoyance, or alarm to another by * * * [e]ngaging in fighting, in threatening
harm to persons or property, or in violent or turbulent behavior[.]” Pursuant to R.C.
2917.11(E)(3), “[d]isorderly conduct is a misdemeanor of the fourth degree if * * * [t]he
offender persists in disorderly conduct after reasonable warning or request to desist.” “The
Supreme Court has defined turbulent behavior as ‘tumultuous behavior or unruly conduct
characterized by violent disturbance or commotion.’” State v. Graham, 9th Dist. Wayne No. 98
CA 0007, 1998 WL 887151, *3 (Dec. 16, 1998), quoting State v. Reeder,18 Ohio St.3d 25, 27
(1985).
{¶24} It is clear that the jury found Officer Webb’s and Officer Harrison’s testimony
credible, and, after reviewing the record, we cannot say that the jury’s credibility determination
was unreasonable. Once outside his house, Mr. Brown became very agitated while talking to
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Officer Webb. According to Officer Webb, Mr. Brown made threats against the police and
against Officer Vaughn. Even after Officer Webb told Mr. Brown he was under arrest, Mr.
Brown proceeded to try and reenter his house, an act Officer Webb viewed as possibly an
attempt to barricade himself inside or obtain a weapon. When Mr. Brown was pulled to the
ground, he got up and took a stance that the officers described as a fighting stance. Mr. Brown
was repeatedly told to stop resisting and to get on the ground; yet, Mr. Brown at one point told
Officer Webb that he was not going to be arrested. Such behavior could be reasonably perceived
as threatening and violent in nature. See State v. Hagstrom, 12th Dist. Butler No. CA98-07-157,
1999 WL 527785, *6 (June 21, 1999). While Mr. Brown asserts the evidence does not support a
conviction for persistent disorderly conduct after a reasonable warning to desist, we conclude the
totality of the testimony discussed above could allow a jury to conclude that Mr. Brown’s
turbulent behavior continued after warnings to desist. Accordingly, we cannot say that Mr.
Brown’s conviction for persistent disorderly conduct is against the manifest weight of the
evidence.
{¶25} In sum, all of Mr. Brown’s arguments essentially focus on the credibility
determinations. As noted above, this Court has frequently stated that the trier of fact is in the
best position to make credibility determinations. See, e.g., State v. Campanalie, 9th Dist.
Summit No. 26383, 2013-Ohio-3509, ¶ 21. After reviewing the record, we cannot say that the
jury lost its way in doing so. We overrule Mr. Brown’s first assignment of error.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED BY FAILING TO CONDUCT A SIMILAR
IMPORT ANALYSIS BEFORE SENTENCING BROWN ON ALL COUNTS.
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{¶26} Mr. Brown asserts in his second assignment of error that the trial court failed to
consider whether any of his convictions merged for purposes of sentencing. The State concedes
the error. We agree.
{¶27} In State v. Johnson, 128 Ohio St.3d 153, 2010–Ohio–6314, the Ohio Supreme
Court held that “[w]hen determining whether two offenses are allied offenses of similar import
subject to merger under R.C. 2941.25, the conduct of the accused must be considered.” Id. at
syllabus. Subsequent to that decision, this Court has consistently remanded cases for further
proceedings in the trial court to apply Johnson in the first instance. See, e.g., State v. Owens, 9th
Dist. Summit No. 25872, 2012-Ohio-3667, ¶ 19. In light of our precedent, it is necessary to
remand this matter so that the trial court can apply Johnson in the first instance. We sustain Mr.
Brown’s second assignment of error.
III.
{¶28} In light of the foregoing, we overrule Mr. Brown’s first assignment of error and
sustain his second assignment of error. We remand the matter to the Summit County Court of
Common Pleas so that it can consider and apply Johnson. All other outstanding motions pending
before this Court are denied.
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.
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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.
EVE V. BELFANCE
FOR THE COURT
WHITMORE, J.
HENSAL, J.
CONCUR.
APPEARANCES:
JEFFREY N. JAMES, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.