State v. Brown , 2012 Ohio 1425 ( 2012 )

[Cite as State v. Brown, 2012-Ohio-1425.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 24602
Plaintiff-Appellee :
: Trial Court Case No. 2010-CR-1931
v. :
:
JULIUS BROWN : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 30th day of March, 2012.
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MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. #0069384, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
WILLIAM T. DALY, Atty. Reg. #0069300, 1250 West Dorothy Lane, Suite 105, Kettering,
Ohio 45409
Attorney for Defendant-Appellant
JULIUS BROWN, #A-648-557, Chillicothe Correctional Institution, Post Office Box 5500,
Chillicothe, Ohio 45601
Defendant-Appellant, pro se
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2
FAIN, J.
{¶ 1} Defendant-appellant Julius Brown appeals from his conviction and sentence
for Felonious Assault with a firearm specification. Brown’s assigned appellate counsel filed a
brief pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967),
stating that after thoroughly examining the record and the law, he found no potentially
meritorious issues for appeal. By entry, we informed Brown that his attorney had filed an
Anders brief on his behalf and granted him sixty days from that date in order to file a pro se
brief. Brown filed a pro se brief proposing three assignments of error, to which the State has
not responded.
2 Pursuant to our duty under Anders, we have conducted an independent
review of the entire record, and we have found no potential assignments of error having
arguable merit. Accordingly, the judgment of the trial court is Affirmed.
I
3 One weekend in June 2010, three of Teddy Waters’s daughters were visiting
him in his home. Waters called the mother of one of his daughters, Sierra Turner, to arrange
for her to pick up their daughter. Waters and the three girls were waiting in front of the house
when Turner arrived a couple of hours later along with her boyfriend, Leonard Lenn, and her
other child. At the same time, two other vehicles pulled up containing several other
individuals, including Lenn’s uncle Julius Brown. Waters did not know any of the people
who arrived at his home, other than Turner and Lenn.
3
4 Turner and Waters began to argue about her having arrived so late to pick up
their daughter. Hearing the argument, Teddy’s girlfriend, Natalie Middleton, and his sister,
Brittney White, came out of the house. White and Middleton noticed that, in addition to
Turner and Lenn, there were several people present, none of whom they knew. White and
Middleton’s attention was drawn to Brown because they noticed that he was holding a
handgun. White approached Brown and asked him to put the gun away, reminding him that
there were children present. Brown told her not to worry, but he continued to hold the gun at
his side.
5 Suddenly, Waters saw Brown raise the gun toward him, and Waters heard
Brown threaten to shoot him. Brown fired several shots, none of which hit Waters. Waters,
White, and Middleton pushed the children into the house, and White called the police. As
Turner, Lenn, Brown, and the others drove away, Waters, White, and Middleton heard a
couple more shots being fired.
6 Dayton Police Officers arrived a few minutes later. Waters, White, and
Middleton described the shooter as a stocky, light-skinned black male, with freckles on his
face. He was wearing a yellow and blue striped polo shirt, blue jeans, and a red baseball cap.
Because Turner was known to frequently spend time at the DeSoto Bass housing project, the
three witnesses believed that the group may have gone there.
7 The officers drove to DeSoto Bass, where they found the vehicles that had
been described by Waters, White, and Middleton. The officers encountered Brown, who fit
the description given by all three witnesses of the shooter. The officers brought Brown and
Lenn back to Waters’s home. Waters, White, and Middleton all identified Brown as the
4
shooter. After confirming that Lenn had not been involved, he was released. Brown was
placed under arrest. The following month Brown was indicted on one count Felonious
Assault with a firearm specification.
8 Brown filed a motion to suppress, which the trial court overruled. The case
proceeded to trial, and a jury found Brown guilty as charged. The trial court sentenced
Brown to ten years in prison. From his conviction and sentence, Brown appeals.
II
9 In his pro se filing, Brown proposes three assignments of error. In his
first two proposed assignments of error, Brown claims that his conviction is against the
manifest weight of the evidence and that the State presented insufficient evidence of his guilt.
10 A sufficiency of the evidence argument challenges whether the State has
presented adequate evidence on each element of the offense to allow the case to go to the jury
or to sustain the verdict as a matter of law. State v. Thompkins, 78 Ohio St. 3d 380, 386, 678
N.E.2d 541 (1997). The proper test to apply to such an inquiry is the one set forth in
paragraph two of the syllabus of State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492 (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."
5
11 In contrast, when reviewing a judgment under a manifest weight standard of
review “[t]he court reviewing the entire record, weighs the evidence and all reasonable
inferences, considers the credibility of witnesses and determines whether in resolving conflicts
in the evidence, the [factfinder] clearly lost its way and created such a manifest miscarriage of
justice that the conviction must be reversed and a new trial ordered. The discretionary power
to grant a new trial should be exercised only in the exceptional case in which evidence weighs
heavily against the conviction.” Thompkins, 78 Ohio St. 3d 387, quoting State v. Martin, 20
Ohio App. 3d 172, 175, 485 N.E.2d 717 (1983).
12 Specifically, Brown insists that Waters’s testimony was not credible because
Waters signed an affidavit prepared by defense counsel, which stated that Waters had
misidentified Brown as the shooter. While the affidavit certainly is relevant to the issue of
Waters’s credibility, determinations of witness credibility are primarily for the trier of fact, to
which an appellate court should give substantial deference. Barberton v. Jenney, 126 Ohio
St. 3d 5, 2010-Ohio-2420, 929 N.E.2d 1047, ¶ 20.
13 In this case, the jury was aware that Waters identified Brown as the shooter at
the scene of the crime and at three previous court hearings. At trial, Waters, White, and
Middleton all positively identified Brown as the shooter. Furthermore, Waters explained that
he had signed the affidavit because he was feeling internally pressured and scared, and he just
wanted the whole situation to be over. We see no potentially meritorious argument to be
made concerning the weight or sufficiency of the State’s evidence.
14 In his third proposed assignment of error, Brown maintains that he was denied
the effective assistance of appellate counsel. However, the proper vehicle for asserting
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ineffective assistance of appellate counsel is not on direct appeal, but in an application to
re-open, pursuant to App.R. 26(B). State v. Flanigan, 2d Dist. Montgomery No. 22356,
2008-Ohio-4135, ¶ 11, citing State v. Hutton, 100 Ohio St. 3d 176, 2003-Ohio-5607, 797
N.E.2d 948.
III
15 After performing our duty of independent review, we have found no potential
assignments of error having arguable merit. We conclude, therefore, that this appeal is
wholly frivolous. Consequently, the judgment of the trial court is Affirmed.
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GRADY, P.J., and FROELICH, J., concur.
Copies mailed to:
Mathias H. Heck
Andrew T. French
William T. Daly
Julius Brown
Hon. Dennis J. Adkins