State v. Brown

[Cite as State v. Brown, 2019-Ohio-313.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 106667
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
COREY BROWN
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-17-615206-A
BEFORE: Celebrezze, J., Boyle, P.J., and Yarbrough, J.*
RELEASED AND JOURNALIZED: January 31, 2019
ATTORNEY FOR APPELLANT
David L. Doughten
David L. Doughten Co., L.P.A.
4403 St. Clair Avenue
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Anne Kiran Mikhaiel
Gregory J. Ochocki
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{¶1} Defendant-appellant, Corey Brown (“appellant”), brings this appeal challenging his
convictions for rape, kidnapping, aggravated burglary, aggravated robbery, and tampering with
evidence. Specifically, appellant argues that the trial court erred by not properly informing him
of his right to testify in his defense, and that his convictions for the three-year and one-year
firearm specifications were against the manifest weight of the evidence. After a thorough
review of the record and law, this court affirms.
I. Factual and Procedural History
{¶2} The instant matter arose from an incident on November 7, 2015, where appellant,
and an unidentified male, broke into the home of the victim, K.W., in the middle of the night.
Appellant and the male stole K.W.’s possessions, forced her to perform oral sex, and vaginally
raped her.
{¶3} On the night of November 6, 2015, K.W. had some family come over her house on
the east side of Cleveland to celebrate her upcoming birthday. K.W. had some alcoholic drinks
with her family members and eventually went to sleep around 12:30 a.m. At approximately
4:00 a.m., K.W. woke up to appellant and the unidentified male in her bedroom. These two
males each had on hooded sweatshirts with the hoods pulled tight around their faces. K.W. was
only able to see the males’ eyes and noses. K.W. described one male as a “light-skinned guy
with a gray hoodie” who was holding a chrome revolver to K.W.’s head. K.W. described the
second male as “a dark-skinned guy with a blue hoodie” and this male was also holding a black
revolver. The light-skinned male told K.W. to “get up” and “go downstairs.”
{¶4} The two males forced K.W. downstairs at gunpoint. While downstairs, the two
males ransacked K.W.’s home searching for property to steal. At this point, the dark-skinned
male made sexual remarks to K.W. K.W. then told the two males that she had to use the
downstairs bathroom. The dark-skinned male followed K.W. into the bathroom and forced his
penis into K.W.’s mouth.
{¶5} The two males then forced K.W. back upstairs to her bedroom and ransacked her
bedroom searching for additional property to steal. At this time, the light-skinned male raped
K.W., forcing his penis into K.W.’s vagina, while the dark-skinned male continued to search the
bedroom. The dark-skinned male remarked to the light-skinned male “you fried,” indicating
that the light-skinned male was acting foolish or ridiculous. The dark-skinned male then forced
himself on K.W. and forced his penis into her vagina, while the light-skinned male then forced
his penis into K.W.’s mouth.
{¶6} The males then fled the home. The males had stolen K.W.’s cell phone so K.W.
ran to a neighbor’s house, and the neighbor called 911.
{¶7} Subsequently, on March 15, 2017, the Cuyahoga County Grand Jury returned a
ten-count indictment charging appellant with: (1)-(3) rape, in violation of R.C. 2907.02(A)(2);
(4) aggravated burglary, in violation of R.C. 2911.11(A)(1); (5) aggravated burglary, in violation
of R.C. 2911.11(A)(2); (6) kidnapping, in violation of R.C. 2905.01(A)(4); (7) aggravated
robbery, in violation of R.C. 2911.01(A)(1); (8) aggravated robbery, in violation of R.C.
2911.01(A)(3); (9) theft, in violation of R.C. 2913.02(A)(1), and (10) tampering with evidence,
in violation of R.C. 2921.12(A)(1). All counts, except the theft count, had accompanying
three-year and one-year firearm specifications in violation of R.C. 2941.145 and 2941.141.
Appellant entered a plea of not guilty during his March 29, 2017 arraignment.
{¶8} The matter proceeded to a jury trial. After the state’s presentation of its case in
chief, appellant moved for a judgment of acquittal pursuant to Crim.R. 29 on the theft count,
arguing that the state did not present evidence that the property constituting the offense amounted
to a value of $1,000 or greater. The trial court agreed and granted appellant’s motion. The
trial court amended the theft count to a first-degree misdemeanor. Thereafter, the jury returned
a verdict of guilty on all ten counts, including the amended theft count. Appellant was sentenced
to an aggregate prison term of 20 years.
{¶9} Appellant brings the instant appeal raising two assignments of error for our review.
I. The trial court failed to ensure that [appellant] knowingly, intelligently and
voluntarily waived his right to testify as established by the Fourteenth
Amendment to the United States Constitution.
II. The evidence that [appellant] possessed or used a firearm pursuant to R.C.
2941.141 and [2941.145] to facilitate the charges against him is against the weight
of the evidence.
II. Law and Analysis
A. Right to Testify
{¶10} In his first assignment of error, appellant argues that the trial court erred by not
properly informing him of his right to testify in his defense. More specifically, appellant argues
that the trial court failed to ensure that he knowingly, intelligently, and voluntarily waived his
right to testify as established by the Fourteenth Amendment to the United States Constitution.
To this end, appellant asserts that the trial court failed to inquire as to whether appellant
understood that he had “an absolute right to testify or not testify under the state and federal
constitution.” Appellant’s brief at 8.
{¶11} First, we note that appellant’s use of the “knowingly, intelligently, and voluntarily”
verbiage is associated with a Crim.R. 11 plea colloquy and has no relation to an accused’s “right
to testify.” Indeed, appellant cites to no authority that requires a trial court, prior to a defendant
presenting his or her case in chief, to inquire with a defendant as to whether they understand that
they have a “right to testify.”
{¶12} Nevertheless, in support of his argument, appellant cites to a recent United States
Supreme Court case, McCoy v. Louisiana, 584 U.S. ___, 138 S.Ct. 1500, 200 L.Ed.2d 821(2018). The issue in McCoy pertained to whether McCoy’s Sixth Amendment rights were
violated during the guilt and sentencing phases of McCoy’s capital murder trial. McCoy was
charged with capital murder for murdering his estranged wife’s mother, stepfather, and son.
McCoy was found guilty of the three murders. As the court noted:
[McCoy’s counsel’s] strategy was to concede that McCoy committed the murders,
but argue that McCoy’s mental state prevented him from forming the specific
intent necessary for a first-degree murder conviction. Over McCoy’s repeated
objection, [McCoy’s counsel] told the jury McCoy was the killer and that
[McCoy’s counsel would take] “[the] burden off of [the prosecutor]” on that issue.
McCoy testified in his own defense, maintaining his innocence and pressing an
alibi difficult to fathom. The jury found him guilty of all three first-degree
murder counts. At the penalty phase, [McCoy’s counsel] again conceded
McCoy’s guilt, but urged mercy in view of McCoy’s mental and emotional issues.
The jury returned three death verdicts. Represented by new counsel, McCoy
unsuccessfully sought a new trial. The Louisiana Supreme Court affirmed the
trial court’s ruling that [McCoy’s counsel] had authority to concede guilt, despite
McCoy’s opposition.
McCoy at syllabus.
{¶13} We note that McCoy pertains to an incredibly narrow issue: that it is a
defendant’s choice, not his counsel’s, to decide on the objective of his defense. The United
State Supreme Court further outlined this narrow issue as follows:
[A] defendant has the right to insist that counsel refrain from admitting guilt, even
when counsel’s experienced-based view is that confessing guilt offers the
defendant the best chance to avoid the death penalty. Guaranteeing a defendant
the right “to have the Assistance of Counsel for his [defense],” the Sixth
Amendment so demands. With individual liberty—and, in capital cases, life—at
stake, it is the defendant’s prerogative, not counsel’s, to decide on the objective of
his defense: to admit guilt in the hope of gaining mercy at the sentencing stage, or
to maintain his innocence, leaving it to the State to prove his guilt beyond a
reasonable doubt.
Id. Therefore, the issue in McCoy is of no relevance to the present issue of whether or not a
trial court is required to inform a defendant, prior to testifying, that he or she has a right to testify
or not to testify on his or her own behalf at trial. We therefore find that McCoy is inapplicable
to the instant matter.
{¶14} We note that appellant’s arguments have been previously addressed, and rejected,
by the Ohio Supreme Court in State v. Bey, 85 Ohio St.3d 487, 709 N.E.2d 484 (1999).
“Generally, the defendant’s right to testify is regarded both as a fundamental and a personal right
that is waivable only by an accused.” Id. at 499. “[A] trial court is not required to conduct an
inquiry with the defendant concerning the decision whether to testify in his [or her] defense.”
(Emphasis deleted.) Id. See State v. Harrison, 8th Dist. Cuyahoga No. 93132,
2010-Ohio-2778, ¶ 44. Accordingly, because “a trial court is not required to advise a defendant
of his [or her] right to testify, the trial court’s failure to do so cannot constitute error.” Bey at
500.
{¶15} In the instant matter, we find nothing in the record that suggests appellant wanted
to testify and his counsel refused to allow him to testify. Nor do we find anything within the
record to suggest that appellant was unaware of his right to testify. Furthermore, nothing in the
record suggests that appellant’s counsel failed to advise him of his right to testify.
{¶16} To the extent that appellant argues that he suffers from a low IQ and “it would have
been even more essential that the court ensure he understood his trial rights and the nature of
what he was waiving,” we find no merit to this argument. Pursuant to R.C. 2945.37(B), “[i]n a
criminal action in a court of common pleas, * * * the court, prosecutor, or defense may raise the
issue of the defendant’s competence to stand trial. If the issue is raised before the trial has
commenced, the court shall hold a hearing on the issue as provided in this section.” “A
defendant is presumed to be competent and has the burden of proving his incompetency by a
preponderance of the evidence.” State v. McNeir, 8th Dist. Cuyahoga No. 105417,
2018-Ohio-91, ¶ 23, citing State v. Williams, 23 Ohio St.3d 16, 28, 490 N.E.2d 906 (1986).
Therefore, a defendant is incompetent if he “is incapable of understanding the nature and
objective of the proceedings against [him] or of assisting in [his] defense.” R.C. 2945.37(G).
{¶17} We find that the issue of appellant’s competency was not properly raised by his
counsel, and we find no evidence of his incompetency within the record. Moreover, we note
that the trial court in this case actually did instruct appellant regarding his right to testify. The
following exchange occurred between the trial court and appellant at the close of the state’s case
in chief:
THE COURT: Okay. All right. So then why don’t I ask you,
[appellant’s counsel] as this is the [s]tate’s last witness, if you know
whether or not [appellant] intends to testify.
[Appellant’s counsel]: I discussed the matter with [appellant], as well as
his parents, [j]udge, and he does not wish to testify at this time.
THE COURT: Okay. Now, you had ample time to talk to him about
whether or not he wishes to testify?
[Appellant’s counsel]: That is correct.
THE COURT: All right. So, [appellant] you have had an opportunity
to speak to your lawyer about whether or not you wish to testify in this
case?
[Appellant]: Yes, your Honor.
THE COURT: And is it your decision that you do not wish to testify?
[Appellant]: Yes, your Honor.
THE COURT: Okay. And have you had enough time to talk to your
lawyer about whether or not you wish to testify?
[Appellant]: Yes, your Honor.
THE COURT: And do you need any additional time?
[Appellant]: Yes — I mean, no, your Honor.
(Tr. 553-554.) As such, notwithstanding the fact that a trial court is not required to advise a
defendant of his or her right to testify, the trial court in the instant matter did actually advise
appellant of his right to testify. Further, to the extent that appellant argues that the trial court
did not properly inform him of this right to testify, we find that the above exchange more than
sufficiently informed appellant of his right to testify. Lastly, to the extent that appellant argues
that the trial court did not ensure that appellant waived his right to testify, we also find the above
exchange established that appellant waived his right to testify.
{¶18} Accordingly, appellant’s first assignment of error is overruled.
B. Manifest Weight
{¶19} In appellant’s second assignment of error, he argues that his convictions on the
three-year and one-year firearm specifications were against the manifest weight of the evidence.
{¶20} A manifest weight challenge to a conviction questions whether the state met its
burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12.
Therefore, a reviewing court “weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury
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. Thompkins, 78 Ohio St.3d 380, 388, 678 N.E.2d 541(1997). A conviction should be reversed as against the manifest weight of the evidence only in
the most “exceptional case in which the evidence weighs heavily against the conviction.” Id.{¶21} Although we review the credibility of witnesses when considering a manifest
weight challenge, we recognize that determinations regarding credibility and the weight of a
witness’s testimony are primarily for the trier of fact. State v. Bradley, 8th Dist. Cuyahoga No.
97333, 2012-Ohio-2765, ¶ 14, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212(1967). Undeniably, the trier of fact is best able “to view the witnesses and observe their
demeanor, gestures, and voice inflections, and use these observations in weighing the credibility
of the proffered testimony.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d
1264, ¶ 24. The jury may detect any number of inconsistencies and resolve them accordingly,
“believ[ing] all, part, or none of a witness’s testimony.” State v. Raver, 10th Dist. Franklin No.
02AP-604, 2003-Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548(1964).
{¶22} In support of his manifest weight challenge, appellant argues that there exists no
“credible evidence that a firearm was used to facilitate th[e] sex act[s] or that [appellant]
possessed a firearm[.]” Appellant’s brief at 14. Appellant asserts that the lack of physical
evidence of a firearm supports this contention. More specifically, appellant argues because
there was no firearm recovered and there was no physical evidence of a firearm at the crime
scene, his convictions are against the manifest weight of the evidence.
{¶23} First, we note that appellant’s arguments regarding a lack of physical evidence are
immaterial. K.W. did not testify that either appellant or the unknown male discharged either
firearm. Nor did she testify that the two males left either firearm behind. Therefore, any
argument before this court asserting a lack of physical evidence of a firearm is without merit.
{¶24} Second, appellant asserts that because there existed no physical evidence of a
firearm, the evidence of a firearm was only circumstantial and his convictions are therefore
against the manifest weight of the evidence. Appellant does not argue that the weight of the
circumstantial evidence weighed heavily against his convictions. He simply asserts that because
there existed only circumstantial evidence, rather than direct evidence, the convictions are against
the manifest weight of the evidence. We reject this argument because it is in direct conflict
with well-established law.
{¶25} The firearm specification is described within R.C. 2941.141(A) and 2941.145(A).
R.C. 2941.145(A), states in pertinent part:
the offender had a firearm on or about the offender’s person or under the
offender’s control while committing the offense and displayed the firearm,
brandished the firearm, indicated that the offender possessed the firearm, or used
it to facilitate the offense.
R.C. 2941.141(A), states in pertinent part, that “the offender had a firearm on or about the
offender’s person or under the offender’s control while committing the offense.” In defining
the term “firearm,” R.C. 2923.11(B)(1) states:
“Firearm” means any deadly weapon capable of expelling or propelling one or
more projectiles by the action of an explosive or combustible propellant.
“Firearm” includes an unloaded firearm, and any firearm that is inoperable but
that can readily be rendered operable.
Moreover, pursuant to R.C. 2923.11(B)(2), when determining whether a firearm is operable, “the
trier of fact may rely upon circumstantial evidence, including, but not limited to, the
representations and actions of the individual exercising control over the firearm.” (Emphasis
added.)
{¶26} The Ohio Supreme Court has further elaborated on the issue:
A firearm enhancement specification can be proven beyond a reasonable doubt by
circumstantial evidence. In determining whether an individual was in possession
of a firearm and whether the firearm was operable or capable of being readily
rendered operable at the time of the offense, the trier of fact may consider all
relevant facts and circumstances surrounding the crime, which include any
implicit threat made by the individual in control of the firearm.
(Citations omitted.) Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541, at paragraph one of the
syllabus.
{¶27} Proof of a firearm in support of a firearm specification “can be established beyond
a reasonable doubt by the testimony of lay witnesses who were in a position to observe the
instrument and the circumstances surrounding the crime.” State v. Murphy, 49 Ohio St.3d
206, 209, 551 N.E.2d 932 (1990). As this court has previously stated, “[t]he body of cases on
this issue hold that either the assailant was in possession of a firearm and made statements of his
ability, or intent, to use it to cause physical harm or that the offender intimated that (s)he
possessed it, without brandishing it and contemporaneously made statements of his/her ability to
cause harm with a firearm.” State v. Roscoe, 8th Dist. Cuyahoga No. 99113, 2013-Ohio-3617, ¶
31.
{¶28} Recently, in State v. Cummings, 8th Dist. Cuyahoga No. 106458, 2018-Ohio-4214,
this court upheld a conviction based upon a sufficiency challenge where there existed sufficient
evidence to show that the defendant ordered the victim to empty his pockets while placing the
gun to the victim’s chest. This court further noted that “[t]he implicit threat while brandishing
the gun so as to threaten [the victim] is sufficient to establish its operability.” Id. at ¶ 22.
{¶29} In our review of the record, we find the instant matter analogous to Cummings, and
find that appellant’s convictions were not against the manifest weight of the evidence. K.W.
testified that she was awoken in the middle of the night by intruders in her bedroom. K.W.
specifically testified that she woke up with a gun to her head. Further, there was also a second
male in K.W.’s bedroom who also had a gun in his hand. K.W., who is familiar with guns,
testified that the male holding a gun to her head was a “light-skinned guy with a gray hoodie” and
he had a chrome revolver pointed at her head. (Tr. 321.) The other male was “a dark-skinned
guy with a blue hoodie” who was also holding a black gun that looked to K.W. like a black
revolver. K.W. testified that the light-skinned male told her to “get up” and “go downstairs.”
(Tr. 321-322.)
{¶30} The two males then ordered K.W. down to the first floor of the house, each holding
a handgun. While K.W. and the two males were downstairs, K.W. testified that the
light-skinned male was stealing her TV and video game systems. As this was happening, the
dark-skinned male “still had a gun to [K.W.] and he started sexually harassing [her].” (Tr. 324.)
K.W. had to use the bathroom, and the dark-skinned male followed K.W. into the bathroom and
forced his penis into her mouth.
{¶31} Based upon these facts, we find that appellant possessed, displayed, and brandished
a firearm while committing the offenses pursuant to R.C. 2941.145(A). We also find that
appellant had a firearm on his person and under his control while committing the offenses
pursuant to R.C. 2941.141(A). Further, we also find that these facts sufficiently established the
operability of the firearm. As such, appellant’s convictions for the firearm specifications were
not against the manifest weight of the evidence.
{¶32} After reviewing the record, we cannot say that this is “an exceptional case” in
which the jury clearly lost its way and created such a manifest miscarriage of justice that
appellant’s convictions were against the manifest weight of the evidence. Thompkins, 78 Ohio
St.3d at 387, 678 N.E.2d 541. The jury was in the best position to view the witnesses and
observe their demeanor, gestures, and voice inflections that are critical observations in
determining the credibility of a witness and his or her testimony. State v. Clark, 8th Dist.
Cuyahoga No. 94050, 2010-Ohio-4354, ¶ 17, citing State v. Hill, 75 Ohio St.3d 195, 205, 661
N.E.2d 1068 (1996), and Antill, 176 Ohio St. at 66, 197 N.E.2d 548. The jury “was free to
believe all, part, or none of the testimony of each witness.” State v. Colvin, 10th Dist. Franklin
No. 04AP-421, 2005-Ohio-1448, ¶ 34; State v. Smith, 8th Dist. Cuyahoga No. 93593,
2010-Ohio-4006, ¶ 16.
{¶33} Accordingly, appellant’s second assignment of error is overruled.
III. Conclusion
{¶34} The trial court was not required to advise appellant of his right to testify.
Nevertheless, the trial court did, in fact, advise appellant of his right to testify and appellant
waived this right. As such, there was no error on the part of the trial court. Further, appellant’s
convictions for the firearm specifications were not against the manifest weight of the evidence
because circumstantial evidence established that appellant possessed, displayed, and brandished a
firearm while committing the offenses he was convicted of.
{¶35} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas
court to carry this judgment into execution. The defendant’s convictions having been affirmed,
any bail pending appeal is terminated. Case remanded to the trial court for execution of
sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
MARY J. BOYLE, P.J., and
STEPHEN A. YARBROUGH, J.,* CONCUR
* (Sitting by Assignment: Retired Judge Stephen A. Yarbrough of the Sixth District Court of
Appeals.)