State v. Brown , 2021 Ohio 2540 ( 2021 )

[Cite as State v. Brown, 2021-Ohio-2540.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 20CA011618
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
LARRY BROWN COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellant CASE No. 16CR094523
DECISION AND JOURNAL ENTRY
Dated: July 26, 2021
CALLAHAN, Judge.
{¶1} Appellant, Larry Brown, appeals his convictions by the Lorain County Court of
Common Pleas. This Court affirms.
I.
{¶2} On July 14, 2016, after receiving a report that a man may have been shot in a
residence, police officers responded to a home on West 9th Street in Lorain to perform a safety
check. The officers found the body of L.S., who had died as a result of a single gunshot wound
above his left clavicle. L.S.’s brother, S.F., identified Mr. Brown as the shooter. Mr. Brown fled
Ohio and was arrested in Baltimore, Maryland after seeking medical attention for an unrelated
injury. He was charged with two counts of murder in violation of R.C. 2903.02(A) and (B),
respectively; two counts of felonious assault in violation of R.C. 2903.11(A)(1) and (2); and
tampering with evidence in violation of R.C. 2921.12(A)(1). The murder and felonious assault
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charges were accompanied by firearm specifications pursuant to R.C. 2941.145, and the tampering
charge was accompanied by a firearm specification under R.C. 2941.141.
{¶3} Mr. Brown was arraigned on September 29, 2016. On October 7, 2016, Mr. Brown
waived his speedy trial rights in writing on a form journal entry, and the first pretrial conference
was continued. Numerous such forms appear in the record between that time and November 5,
2018, when the State of Ohio moved to schedule a jury trial. Some of the forms were signed by
Mr. Brown; others indicated through counsel that he waived his speedy-trial rights. In response to
the State’s motion, the trial court set a trial date of March 20, 2019. Five days before the trial date,
defense counsel moved to continue the trial, citing counsel’s need for an emergency medical
procedure. The trial court granted the motion and selected August 19, 2019, as the new trial date.
Other pretrial conferences were conducted between counsel in the interim, documented by further
form entries that contain the same language regarding waiver of speedy trial. Two were signed by
Mr. Brown; a third indicated that Mr. Brown waived his speedy trial rights through counsel.
{¶4} On the date of trial, defense counsel moved to withdraw, and Mr. Brown appeared
in court to read a letter addressed to the trial court in which he requested new counsel. The trial
was continued, and on August 20, 2019, the trial court granted the motion to withdraw, finding
that the relationship between counsel and Mr. Brown had deteriorated to a degree “that they [could]
not adequately work together during a trial[,]” and appointed new counsel. The trial court
subsequently continued the trial to January 27, 2020, upon request of the defense. On September
12, 2019, however, the State moved the trial court to recuse from the case, arguing that the trial
court judge had ex parte contact with a potential witness. The trial court granted the motion.
{¶5} On October 15, 2019, the newly appointed defense counsel also moved to
withdraw, citing his own significant health issues. The trial court granted the motion, appointed a
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third attorney to represent Mr. Brown, and moved the trial date to January 21, 2020. On December
4, 2019, Mr. Brown filed a motion to dismiss the indictment, alleging that his right to a speedy
trial had been violated. The motion was handwritten and signed by Mr. Brown, but his appointed
counsel cosigned the motion and the proof of service. The trial court denied the motion,
concluding that Mr. Brown had waived his speedy trial rights.
{¶6} A jury found Mr. Brown guilty of all charges and firearm specifications. The trial
court merged the murder and felonious assault convictions with their accompanying firearms
specifications for purposes of sentencing, and the State elected to proceed to sentencing on the
murder conviction under R.C. 2903.02(A). The trial court sentenced Mr. Brown to prison terms
of fifteen years to life for the murder conviction and thirty-six months for the accompanying
firearm specification. The trial court sentenced Mr. Brown to additional twelve-month prison
terms for tampering with evidence and the accompanying firearm specification and ordered each
prison term to be served consecutively for an aggregate prison sentence of twenty years to life.
{¶7} Mr. Brown appealed, asserting six assignments of error. His assignments of error
are rearranged to facilitate discussion.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED IN DENYING MR. BROWN’S MOTION TO
DISMISS IN VIOLATION OF [R.C.] 2945.71 AND [R.C.] 2945.72 AS WELL AS
THE UNITED STATES AND STATE OF OHIO CONSTITUTIONS AS MR.
BROWN’S RIGHT TO A SPEEDY TRIAL WAS VIOLATED.
{¶8} In his first assignment of error, Mr. Brown argues that the trial court erred by
denying his motion to dismiss the indictment because his speedy trial rights had been violated.
Specifically, Mr. Brown argues that he did not knowingly, voluntarily, and intelligently waive his
right to a speedy trial on some of the dates reflected on the form journal entries in the record and
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that the delay in his trial was unreasonable under the circumstances. He also appears to argue that
because he was not present for all pretrials, his right to due process was violated.
{¶9} Ohio’s speedy trial statute, R.C. 2945.71, provides that an individual who has been
charged with a felony must be brought to trial within 270 days of arrest. R.C. 2945.71(C)(2).
When a defendant is incarcerated without bail on the pending charge, each day is counted as three
days. R.C. 2945.71(E). The rights described in R.C. 2945.71 are coextensive with constitutional
speedy trial guarantees. State v. King, 70 Ohio St.3d 158, 160 (1994), citing State v. O’Brien, 34
Ohio St.3d 7, 9 (1987). Consequently, “an accused’s express written waiver of his statutory rights
to a speedy trial, made knowingly and voluntarily, also constitutes a waiver of his speedy trial
rights guaranteed by the United States and Ohio Constitutions.” King at 160, citing O’Brien at
paragraph one of the syllabus.
{¶10} A defendant who has waived speedy trial rights “is not entitled to a discharge for
delay in bringing him to trial unless the accused files a formal written objection and demand for
trial, following which the state must bring the accused to trial within a reasonable time.” O’Brien
at paragraph two of the syllabus. See also State v. Bray, 9th Dist. Lorain No. 03CA008241, 2004-
Ohio-1067, ¶ 8. A waiver of speedy trial rights can be of limited or unlimited duration, but when
a written waiver fails to specify an expiration date, it constitutes an unlimited waiver. Bray at ¶ 8,
citing State v. Kovacek, 9th Dist. Lorain No. 00CA007713, 2001 WL 577664, *4 (May 30, 2001),
citing O’Brien at paragraph two of the syllabus. An unlimited waiver is not effective only until a
defendant’s next scheduled court date. State v. Skorvanek, 9th Dist. Lorain No. 08CA009399,
2009-Ohio-3924, ¶ 18, citing State v. Smith, 9th Dist. Lorain No. 98CA007144, 1999 WL
1260872, *3-4 (Dec. 22, 1999).
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{¶11} The foundation of Mr. Brown’s arguments is the assumption that he executed
multiple speedy trial waivers that were each effective only until the next pretrial date. This
proposition is incorrect. On October 7, 2016, Mr. Brown waived his speedy-trial rights in writing
on a form journal entry used by the Lorain County Court of Common Pleas to document pretrial
proceedings. The waiver did not contain a specific time limitation. This Court has considered the
nature of waivers contained on this form on previous occasions, concluding that it operates not as
a waiver from one court date to another, but as an unlimited waiver of speedy trial rights.
Skorvanek at ¶ 17-19; Smith at *1, 3-4. Although Mr. Brown expressed dissatisfaction with the
fact that he had not been present for all of the pretrial proceedings in his case, he did not
demonstrate in support of his motion to dismiss that his unlimited waiver on that occasion was not
knowing, voluntary, and intelligent. Consequently, there is no evidence in the record from which
this Court could reach that conclusion.
{¶12} There is also no evidence from which this Court could conclude that Mr. Brown
formally objected to the delay and demanded a trial. See O’Brien at paragraph two of the syllabus;
Bray at ¶ 8. To the extent that Mr. Brown addresses this matter in his brief, it appears that his
argument is that he was unable to do so because he was represented by counsel, with whom he had
a disagreement. Mr. Brown’s actions in other respects undermine this argument, however: he
wrote a letter to the trial court which he read aloud in court upon his first attorney’s motion to
withdraw, and he authored the motion to dismiss that was ultimately filed. To the extent that he
argues that any formal objection would certainly have been rejected by the trial court as an act of
hybrid representation, that argument is also not well-taken. See, e.g., State v. Baker, 7th Dist.
Mahoning No. 19 MA 0080, 2020-Ohio-7023, ¶ 103, 105, 108-121 (noting that a pro se motion
by a represented defendant who objected to pretrial delay and asserted speedy trial rights was
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effective and required consideration of whether the defendant was tried in a reasonable time after
the motion was filed).
{¶13} In addition to his arguments related specifically to speedy trial rights, Mr. Brown’s
first assignment of error appears to assert that he was denied due process because he was not
present for pretrial hearings before his first attorney withdrew. The number of pretrial conferences
at which Mr. Brown was apparently not in attendance is of concern to this Court, particularly given
the fact that the record does not reflect that he waived attendance, through counsel or otherwise.
See State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, ¶ 103, citing State v. Frazier, 115 Ohio
St.3d 139, 2007-Ohio-5048, ¶ 144; Frazier at ¶ 145.1 Nonetheless, the absence of an accused only
results in prejudicial error when it prevents “‘a fair and just hearing.’” Frazier at 139, quoting
Snyder v. Massachusetts, 291 U.S. 97, 107-108 (1934). “[S]peculative claim[s]” are not sufficient
to demonstrate prejudicial error. See, e.g., Hale at ¶ 102 (rejecting a defendant’s argument that his
presence at pretrial conferences would have alerted him to ineffective assistance of trial counsel);
Frazier at ¶ 142 (noting that a defendant’s absence was not prejudicial when the subjects discussed
in chambers were “legal or scheduling issues within the professional competence of counsel.”).
Mr. Brown has not demonstrated that his presence at the pretrials was necessary for a fair and just
hearing.
{¶14} Mr. Brown’s first assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING THE STATE
TO RECALL ITS EXPERT WITNESS TO CHANGE HIS TESTIMONY.
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This Court also notes that although there appears to be no dispute about whether Mr.
Brown attended any of the pretrial conferences before his first attorney withdrew, the record does
not reflect whether he attended or not. See generally State v. Clark, 38 Ohio St.3d 252, 258 (1988).
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{¶15} Mr. Brown’s third assignment of error argues that the trial court abused its
discretion by permitting the State to recall R.W., the custodian of records for T-Mobile, to correct
a misstatement in his testimony. This Court does not agree.
{¶16} Evid.R. 611(A) requires a trial court to “exercise reasonable control over the mode
and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation
and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of
time, and (3) protect witnesses from harassment or undue embarrassment.” The decision to permit
a witness to be recalled falls within the trial court’s discretion under Evid.R. 611, and this Court
reviews that decision for an abuse of discretion. See State v. Jackson, 9th Dist. Lorain No.
14CA010555, 2015-Ohio-2473, ¶ 59, citing State v. Anderson, 191 Ohio App.3d 110, 2010-Ohio-
6234, ¶ 9 (9th Dist.). An abuse of discretion is present when a trial court’s decision “‘is contrary
to law, unreasonable, not supported by evidence, or grossly unsound.’” Menke v. Menke, 9th Dist.
Summit No. 27330, 2015-Ohio-2507, ¶ 8, quoting Tretola v. Tretola, 3d Dist. Logan No. 8-14-24,
2015-Ohio-1999, ¶ 25. A trial court may exercise its discretion to permit the recall of a witness in
order to correct testimony previously given through a mistake or oversight on the part of the
witness. State v. McBride, 5th Dist. Stark No. 2008-CA-00076, 2008-Ohio-5888, ¶ 28-36. See,
e.g., State v. Vielma, 3d Dist. Paulding No. 11-11-03, 2012-Ohio-875, ¶ 29-31 (A trial court did
not abuse its discretion when it permitted the State to recall a witness to clarify testimony regarding
the location of an incident.); State v. Smith, 9th Dist. Lorain No. 89CA004620, 1990 WL 72366,
*1-2 (May 23, 1990) (A trial court did not abuse its discretion by permitting the State to recall a
witness regarding two questions that were overlooked.).
{¶17} As an initial matter, this Court notes that R.W. did not testify as an expert, but as
the custodian of records for T-Mobile. See generally Evid.R. 702. In that capacity, he explained
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the meaning of terms referenced on documents produced by T-Mobile and interpreted location
data that was set forth in those documents. During his testimony, he explained the significance of
service codes documented in the cellular phone records of L.S. for the date of his death, which
were introduced by the State as State’s Exhibit AJ. In doing so, R.W. referenced a second
document, which was included in State’s Exhibit AH. That document also provided definitions
for each of the service codes.
{¶18} According to that second document, service code 2A means “Call Forwarding on
No Reply” and service code 29 means “Call Forwarding on Mobile Subscriber Busy.” During his
testimony, R.W. reversed these definitions, explaining that service code 2A is assigned when a
mobile user takes some action to refuse a call, such as swiping to ignore it, while service code 29
is assigned when a call is forwarded to voice mail with no action by the recipient. With respect to
L.S.’s cellular phone records, therefore, R.W. testified that a number of calls to L.S.’s phone were
actively rejected and forwarded to voicemail at a time after L.S. had been shot and his cellular
phone was believed to be unattended in his residence or in police custody.
{¶19} The State realized the error in R.W.’s testimony after he had testified and initiated
contact with R.W. to clarify the meaning of the service codes. Once T-Mobile confirmed that an
error had been made, the State moved to recall R.W. for the purpose of correcting his testimony
on that point. When he was recalled, R.W. explained that he had “inadvertently transposed the
numbers in [his] head and just flip-flopped the explanation.” R.W. also corrected his testimony
regarding the calls that were received by L.S.’s cellular phone during the time period in question.
{¶20} R.W. was recalled not for purposes of addressing his credibility, as Mr. Brown
maintains, but because his previous testimony contained an inadvertent mistake that led to the
misinterpretation of State’s Exhibit AJ and to potential confusion between his testimony and the
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reference document contained in State’s Exhibit AH. The State brought the erroneous testimony
to the trial court’s attention as soon as it was confirmed by T-Mobile, and R.W. was recalled before
the State rested its case. Under these circumstances, this Court cannot conclude that the trial court
abused its discretion by permitting the State to recall R.W. Mr. Brown’s third assignment of error
is overruled.
ASSIGNMENT OF ERROR NO. 4
THE VERDICT IN THIS CASE IS AGAINST THE SUFFICIENCY OF THE
EVIDENCE AND SHOULD BE REVERSED BECAUSE IT VIOLATES THE
FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION, AND ARTICLE I, SECTION 10 OF THE
CONSTITUTION OF THE STATE OF OHIO.
{¶21} In his fourth assignment of error, Mr. Brown argues that his convictions are not
based on sufficient evidence. This Court does not agree.
{¶22} “Whether a conviction is supported by sufficient evidence is a question of law that
this Court reviews de novo.” State v. Williams, 9th Dist. Summit No. 24731, 2009-Ohio-6955, ¶
18, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). The relevant inquiry is whether the
prosecution has met its burden of production by presenting sufficient evidence to sustain a
conviction. Thompkins at 390 (Cook, J., concurring). For purposes of a sufficiency analysis, this
Court must view the evidence in the light most favorable to the State. Jackson v. Virginia, 443
U.S. 307, 319 (1979). We do not evaluate credibility, and we make all reasonable inferences in
favor of the State. State v. Jenks, 61 Ohio St.3d 259, 273 (1991). The evidence is sufficient if it
allows the trier of fact to reasonably conclude that the essential elements of the crime were proven
beyond a reasonable doubt. Id.{¶23} Mr. Brown was convicted of murder in violation of R.C. 2903.02(A) and (B), which
provide:
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(A) No person shall purposely cause the death of another or the unlawful
termination of another’s pregnancy.
(B) No person shall cause the death of another as a proximate result of the
offender’s committing or attempting to commit an offense of violence that is a
felony of the first or second degree and that is not a violation of section 2903.03 or
2903.04 of the Revised Code.
R.C. 2903.02(A) requires that the person causing the death of another act purposely. “A person
acts purposely when it is the person’s 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 the offender’s specific intention to engage in conduct of that
nature.” R.C. 2901.22(A).
{¶24} R.C. 2903.02(B), which prohibits felony murder, does not contain a mens rea
component apart from the predicate offense. State v. Owens, 162 Ohio St.3d 596, 2020-Ohio-
4616, ¶ 10, quoting State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, ¶ 43. “While the defendant
must satisfy all the elements of the qualifying predicate offense—including any mens rea element
specific to that criminal act—the felony-murder statute imposes no additional mens rea element
with regard to the victim’s death.” Owens at ¶ 10. The predicate offense in this case was felonious
assault in violation of R.C. 2903.11(A)(1) and (2), which provided, at the time:
(A) No person shall knowingly do either of the following:
(1) Cause serious physical harm to another or to another’s unborn;
(2) Cause or attempt to cause physical harm to another or to another’s unborn by
means of a deadly weapon or dangerous ordnance.
“A person acts knowingly, regardless of purpose, when the person is aware that the person’s
conduct will probably cause a certain result or will probably be of a certain nature.” R.C.
2901.22(B).
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{¶25} For purposes of this assignment of error, Mr. Brown does not challenge the
conclusion that he is the person who shot L.S. Instead, Mr. Brown argues that there is insufficient
evidence supporting the conclusion that, with respect to R.C. 2903.02(A), he acted purposely and
that, with respect to R.C. 2903.02(B) and R.C. 2903.11(A)(1) and (2), he acted knowingly. In this
respect, this Court is mindful that “[i]ntent must be demonstrated with reference to the surrounding
facts and circumstances” because
“‘The intent of an accused person dwells in his mind. Not being ascertainable by
the exercise of any or all of the senses, it can never be proved by the direct testimony
of a third person, and it need not be. It must be gathered from the surrounding facts
and circumstances under proper instructions from the court.’”
State v. Hanford, 9th Dist. Summit No. 29204, 2019-Ohio-2987, ¶ 8, quoting In re Washington,
81 Ohio St.3d 337, 340 (1998), quoting State v. Huffman, 131 Ohio St. 27 (1936), paragraph four
of the syllabus.
{¶26} Officer Christian Franco responded to L.S.’s residence for a welfare check in
response to a report of a possible shooting. When he arrived, he found that the duplex was locked
and lights were on. Through an open window, he heard music playing. Concerned that there could
be an injured person inside, Officer Franco called out but received no response. He testified that
he continued around the perimeter of the house to another open window, through which he saw
the legs of an individual protruding from a bathroom doorway. Moving to the bathroom window,
Officer Franco saw more of the body and noted the presence of blood. He testified that he decided
to enter the residence and determined that the best point of entry would be a front window that
could be accessed by removing an air conditioning unit.
{¶27} When he entered the house, Officer Franco noted no signs of struggle or forced
entry. He testified that he moved from the front of the lower unit of the duplex toward the back.
When he reached the back hallway, he saw the legs that he had seen from outside the residence.
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Officer Franco testified that when he approached further, he saw L.S.’s body with a single gunshot
wound to the area of his clavicle and a large amount of blood next to the body. He noted no signs
of life and that the shooting did not appear to have “just happen[ed].” Officer Franco testified that
once he located the victim, he returned to the front of the unit, informed a Sergeant that he had
confirmed the presence of a body, secured the unit, and exited. During his testimony, Officer
Franco confirmed the presence of bloody footprints in the unit from the bathroom to the entry area
but testified that he did not step in any blood while in the residence.
{¶28} Detective Brian Denman was assigned to process the crime scene. He testified that
he noted the presence of blood transfer stains on the floor inside the front door, on the carpet
adjacent to the kitchen, and on the kitchen floor. He described what he noticed in the kitchen as
partial footprints and noted that it appeared that someone had stepped in the blood pooled next to
the victim’s left side and walked through the residence. Detective Denman observed that the house
was tidy and bore no indications of a struggle or forced entry. He testified that efforts to locate a
shoe in the house with a tread pattern that matched the bloody footprints proved fruitless.
Detective Denman noted that a 9 mm shell casing was recovered from the bathroom floor near
L.S.’s body, but that police were unable to locate a firearm in the residence. A photograph of the
bathroom where police found L.S.’s body depicts L.S. in a supine position with his head near the
base of the toilet opposite the door. A red baseball cap can be seen on the floor near the toilet
behind L.S.’s body, and a scarf can be seen draped over the toilet itself.
{¶29} Sergeant Dennis Camarillo was the lead investigator of L.S.’s death. He testified
that the crime scene had been secured when he arrived. Sergeant Camarillo recalled that there
were faint indications of blood transfer on the floor at the threshold to the house, in the living
room, and on the carpet between the living room and kitchen threshold. He explained that as he
13
examined the floor in the kitchen, he noted that the pattern more distinctly resembled the tread of
footwear. Sergeant Camarillo testified that there were also drops of blood present and that the trail
led toward the hallway and bathroom area where L.S.’s body was found: “as you headed that way,
each footprint became a little more defined and with a little higher concentration of blood[.]” Next
to the body, Sergeant Camarillo noted “a significant amount of blood pooled to [L.S.’s] left side,”
which appeared to be the source of the bloody footprints. He also explained that “[b]ecause of *
* * the nature of how they were left behind, it was clear that whoever left those bloody footprints
was in close proximity to [L.S.] after he was shot.”
{¶30} Sergeant Camarillo testified that the pool of blood was notable because “the blood
coming from the wound goes in one direction, over from the front of [L.S.]’s body, chest, upper
shoulder area, towards his back and onto the ground. * * * It all generated * * * from that source,
and * * * it accumulated on the left side of his body.” He also explained the significance of the
location where police recovered the spent shell casing:
[B]ecause it ejected to the right, * * * it was somewhere near - - either just inside
the bathroom or at the threshold. And * * * since it ejects to the right, the firearm
would have been fired, the casing would have ejected to the right, and in some
fashion ended up in that corner where it was located. * * * [I]t indicates to me that
the weapon was fired either right inside the bathroom or the, like the threshold of
the bathroom door to the hallway. Right in that - - right by where [L.S.]’s body
was found.
Sergeant Camarillo explained that his training and experience led him to conclude that L.S. was
shot “right where he was found laying.”
{¶31} Dr. Frank Miller, III, the Lorain County Chief Deputy Coroner, described the
findings of L.S.’s autopsy. He explained that L.S. died as a result of a single gunshot wound
inflicted by a bullet that entered his body just above his clavicle on the left side, travelled toward
the center of his body, and exited the left side of his back around the midline of his body.
14
According to Dr. Miller, the bullet moved from front to back, from left to right, and “slightly
upward[.]” Along this path, the bullet passed through the upper lobe of L.S.’s left lung, causing
bleeding from the subclavian artery and vein. Dr. Miller explained that L.S.’s left lung would have
filled with blood and that the corresponding blood loss to the brain L.S. experienced would cause
him to lose consciousness within thirty seconds to two minutes and, within four or five minutes,
would cause death.
{¶32} Dr. Miller explained that the single direction of L.S.’s blood flow indicates that he
had been laying on his back, as he was found, and Dr. Miller testified that his injuries were
consistent with being shot by someone standing over him. He also noted that if L.S. had been
moving around after sustaining the gunshot wound, he would have been actively bleeding in large
amounts. He testified that L.S.’s body bore numerous other abrasions and contusions that were
sustained around the time of his death, including bruising between his skull and scalp in the area
where his head rested on the bathroom floor.
{¶33} S.F., L.S.’s younger brother, described the events that took place on the morning of
the shooting. He explained that Mr. Brown was not related to him and L.S. by blood but had a
close relationship with them nonetheless. S.F. recalled that Mr. Brown arrived at the apartment
that S.F. shared with L.S. sometime during the night before the shooting. S.F. was aware that Mr.
Brown always carried a firearm. Early on the morning of July 14, 2016, Mr. Brown awakened
S.F. to go with him to pick up his young son. According to S.F., Mr. Brown wore “[s]ome kind
of long gown, like dashiki like – it’s a type [of] robe-looking thing.” Mr. Brown also wore a scarf
and a hat. When they returned, according to S.F., L.S. was in the kitchen cooking. S.F. testified
that Mr. Brown and L.S. began “talking jive back and forth[]” and “[h]orseplay[ing], like slap
boxing, you know, just throwing punches at each other, just playing.” He explained that “they was
15
just using their hands, and my brother * * * would use his feet, some of that[,]” and that they did
not make “real hard contact[.]” S.F. testified that Mr. Brown still wore the outfit that he had worn
earlier that morning.
{¶34} After the two disappeared from his sight, S.F. heard the sound of a gunshot from
the area of the hallway between the bathroom and his own bedroom. He recalled that, seconds
later, Mr. Brown came out of the back hall with a look on his face that S.F. described as
“[h]orrified” and “[c]razed, enraged[.]” S.F. testified that Mr. Brown came toward him carrying a
gun that he had seen in Mr. Brown’s possession on previous occasions. Mr. Brown no longer wore
the hat or scarf, which S.F. identified as those found by the police near L.S.’s body in the bathroom.
S.F. explained that he left the apartment with Mr. Brown out of fear that he too would be shot and
that he drove Mr. Brown’s car away from the residence. He testified that once in the car, Mr.
Brown said something along the lines of “‘I had to pop that motherfucker[.]’” The two drove to a
carwash, where S.F. noticed a bloodstain on the robe that Mr. Brown wore. S.F. testified that Mr.
Brown removed the robe, placed it in a plastic bag, and left it in a garbage can. Surveillance video
confirmed that after Mr. Brown discarded the robe, a gun was visible in the area of his waistband.
Surveillance video from a nearby convenience store captured Mr. Brown buying a new shirt and
changing into it. S.F. testified that Mr. Brown eventually entered a bank, where he secured a cash
advance on his credit card. After S.F. entered the bank himself and hid under an employee’s desk,
Mr. Brown fled in his vehicle.
{¶35} These facts and circumstances surrounding the death of L.S.—including his
statements and conduct after the crime was committed—viewed in the light most favorable to the
State and with all inferences resolved in favor of the State, would allow the jury to reasonably
conclude that it was Mr. Brown’s specific intention to cause L.S.’s death by inflicting a single
16
gunshot wound at close range, either while Mr. Brown was standing at the location where his body
was found or as he lay in that position after sustaining numerous other injuries near the time of his
death. Alternatively, the jury could reasonably conclude that Mr. Brown knowingly inflicted
serious physical harm upon L.S. or caused physical harm by means of a firearm and that his death
resulted.
{¶36} Mr. Brown’s convictions for murder are not based on insufficient evidence. His
fourth assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 5
THE CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE 14TH
AMENDMENT TO THE U.S. CONSTITUTION AND OF THE OHIO
CONSTITUTION.
{¶37} Mr. Brown’s fifth assignment of error argues that his convictions are against the
manifest weight of the evidence. This Court does not agree.
{¶38} When considering whether a conviction is against the manifest weight of the
evidence, this Court 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 reversal on this basis is reserved for
the exceptional case in which the evidence weighs heavily against the conviction. Id., citing State
v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). As with other elements of a crime, “the
credibility of witnesses and their degree of certainty in identifying the defendant are matters
affecting the weight of the evidence.” State v. Flynn, 9th Dist Medina No. 06CA0096-M, 2007-
17
Ohio-6210, at ¶ 12, citing State v. Gorgan, 9th Dist. Medina No. 1824, 1990 WL 1771, *1 (Jan.
10, 1990).
{¶39} In support of his manifest weight argument, Mr. Brown maintains that S.F. was not
a credible witness, that the physical evidence did not support his convictions, and that the results
of the police investigation were unreliable. Unlike his arguments supporting his fourth assignment
of error, Mr. Brown’s manifest weight argument is based on the proposition that he is not the
person who shot L.S.
{¶40} S.F. described the events before and after L.S. was shot in detail. He testified that
both he and L.S. had a good relationship with Mr. Brown before the events in question. S.F.
recalled that he had not been aware that Mr. Brown would be visiting from his residence in
Kentucky, but that he saw Mr. Brown’s gold Mercedes Benz parked outside when he returned
home early on the morning of July 14, 2016. He testified that it was Mr. Brown’s idea for the two
men to pick up his young son and that L.S. was still asleep when they left to do so. S.F. testified
that he drove the car and Mr. Brown provided directions. According to S.F.’s testimony, they
picked up Mr. Brown’s son at a location on West 20th Street, then drove to a location on South
Broadway to visit a female friend of Mr. Brown’s. There was no answer at the door at that location,
and Mr. Brown testified that they then drove to a highrise apartment building in South Lorain to
visit a man named G.C. Once there, according to S.F., Mr. Brown and his son went upstairs in the
elevator while S.F. waited in the lobby. S.F. testified that after waiting between twenty and thirty
minutes, Mr. Brown returned without his son, and they drove home.
{¶41} According to S.F., L.S. was awake and making food in the kitchen when they
arrived. S.F. testified that L.S. was cooking grits, but during his cross-examination he noted that
it was L.S.’s pattern to cook grits rather than what he observed. S.F. recalled that he was in the
18
kitchen making peanut butter and jelly sandwiches while L.S. and Mr. Brown were “horse
playing[,]” and it is from there that he heard a gunshot from the area of the back hallway and
bathroom. S.F. testified that Mr. Brown emerged from the hallway with a firearm in his hand that
was pointed in S.F.’s direction. According to S.F.’s testimony, Mr. Brown said, “‘Come on. Let’s
go.’” S.F. explained that he did what Mr. Brown told him to do because he was frightened and “in
a state of shock.” He recalled that Mr. Brown told him to drive the gold Mercedes and that he did
so because he was afraid that he would be shot, although he did not recall whether Mr. Brown still
had the gun out once they started driving.
{¶42} S.F. testified that Mr. Brown told him to drive to a carwash and, once they arrived,
that he noticed a bloodstain of three or four inches in diameter on Mr. Brown’s robe. S.F.
acknowledged that although he knew some people at the carwash, he did not tell them what
happened because he did not have an opportunity. After Mr. Brown changed clothes at the
carwash, the two men walked to a neighboring convenience store. S.F. testified that he did not
flee at that time because he was afraid of being shot, and he explained that he pulled his cellular
phone out because he wanted to call someone for help but ultimately did not do so. S.F. recalled
that he and Mr. Brown walked back to the carwash and got into Mr. Brown’s car again.
{¶43} At this point, Mr. Brown drove, and S.F. rode in the passenger seat. S.F. explained
that, in an effort to escape, he told Mr. Brown that he had to use the bathroom and asked to drive
to his mother’s home. When no one answered the doorbell, S.F. got back in the car. Their next
stop was a gas station in Lorain, where Mr. Brown went inside while S.F. remained in the car alone
about twenty-five feet away. S.F. explained that he did not flee because he “[couldn’t] outrun no
bullet.”
19
{¶44} S.F. testified that their final stop was a bank branch in Amherst. He recalled that
Mr. Brown first tried to obtain cash from an ATM then entered the bank while S.F. remained in
the car. He testified that he waited until Mr. Brown was talking to a bank teller then entered the
bank and told Mr. Brown that he was going next door to use the bathroom. S.F. explained that he
went to the restroom of a business next door, locked the door, and tried to make a phone call. He
acknowledged that he did not say anything about the situation to employees in the business when
he left the restroom. Noticing that Mr. Brown’s car was no longer parked outside the bank, S.F.
returned, entered the bank, and hid under an employee’s desk. He testified that he asked the
employee to call the police and told her about the shooting. He also recalled that he called his
mother and sister at that time. When interviewed by the police, S.F. identified Mr. Brown as the
individual involved in the shooting with certainty.
{¶45} Mr. Brown argues that S.F.’s testimony cannot be considered credible because he
made statements that were inconsistent with respect to certain details and acknowledged that he
lied during interviews with the police. S.F.’s prior inconsistent statements and admitted falsehoods
were, indeed, acknowledged at trial. The first officer who interviewed S.F. testified that he said
Mr. Brown was covered in blood after the shooting. S.F. testified differently at trial, and he
explained that if he had previously made this statement, it was false. He acknowledged that he
had previously told police that he was outside the house when the shooting occurred and that he
maintained this falsehood until his third interview with police on August 7, 2017. He admitted
that he previously told his mother that he had crawled through the sunroof of Mr. Brown’s car to
escape when, in fact, he had tried to do so unsuccessfully. During his cross-examination, S.F.
acknowledged that he omitted several details during his testimony—namely, that after leaving the
carwash, he and Mr. Brown walked to a Family Dollar before going to the convenience store
20
because Mr. Brown wanted to find an ATM and, after they left the convenience store, that the two
men rode with a third party to his house, where they sat on the porch talking. S.F. acknowledged
that there were no items visible in photographs of the kitchen that were consistent with making
peanut butter and jelly sandwiches. S.F. denied that he knew a former upstairs neighbor, T.W.,
although she testified that she knew and had done drugs with S.F. According to T.W.’s testimony,
S.F. provided her with three different stories about how the shooting took place.
{¶46} Sergeant Camarillo confirmed discrepancies in S.F.’s prior statements.
Inconsistencies notwithstanding, however, the testimony of other witnesses confirmed S.F.’s
testimony to a significant degree. One of S.F. and L.S.’s neighbors testified that she had seen a
gold vehicle parked at their house on the morning of July 14th and that she later saw a man she
did not recognize wearing a robe that was white with green stripes. She identified Mr. Brown as
the person she saw that morning. Another neighbor provided the police with security video footage
that confirmed this testimony and S.F.’s timeline of events from early that morning. Cellular
telephone tower data from Mr. Brown’s cellular phone was generally consistent with the timeline
of the day’s events provided by S.F., and surveillance video obtained from the carwash,
convenience store, and bank confirmed details in S.F.’s testimony. As Sergeant Camarillo
observed, cellular phone extraction data was consistent with S.F.’s testimony regarding the calls
that he attempted to place after the shooting.
{¶47} Other witnesses confirmed S.F.’s version of the events that happened once he
entered the bank where Mr. Brown obtained a cash advance. T.G., a bank employee, testified that
on the date in question, a man who appeared to be “extremely frightened, anxious, [and] in a hurry”
entered the bank and hid under the desk in an office. T.G. recalled that the man said “he was
kidnapped, there was a murder, to call the police.” T.D., a former sergeant with the Amherst Police
21
Department, responded to the bank. He testified that he found a “very distraught” male who “was
in a very excited state” and “obviously had been involved in some type of situation where his
nerves were damaged.” T.D. explained that the man, whom he identified as S.F., told him that Mr.
Brown had been involved in a shooting at S.F.’s residence. According to T.D., S.F. provided him
with the address where the shooting occurred, the identity of the shooter, and the make and model
of Mr. Brown’s vehicle.
{¶48} This Court must “‘consider[] the credibility of witnesses’” as part of our manifest
weight review. Thompkins, 78 Ohio St.3d at 387, quoting Martin, 20 Ohio App.3d at 175.
Nonetheless, this Court is mindful of the well-established principle that a trier of fact enjoys the
best position to assess the credibility of witnesses. State v. Rivera, 9th Dist. Lorain No.
18CA011263, 2019-Ohio-62, ¶ 39, quoting State v. Johnson, 9th Dist. Summit No. 25161, 2010-
Ohio-3296, ¶ 15. Although S.F.’s testimony was inconsistent with his prior statements in some
respects, this Court cannot conclude, as Mr. Brown suggests, that it must be disregarded entirely.
{¶49} Mr. Brown also argues that his convictions are against the manifest weight of the
evidence because Sergeant Camarillo testified that the tread pattern on Mr. Brown’s shoes did not
match the bloody footprints at the scene. This fact is of limited value, however, because Sergeant
Camarillo’s testimony in this respect was qualified. Sergeant Camarillo testified that he submitted
still-frame images from surveillance videos that captured the shoes that Mr. Brown was wearing
after the fact to the FBI in the hope that they could provide useful information. The State stipulated
“that the FBI could not make a match to the tread pattern[.]” Based on this stipulation, the defense
did not move to admit the FBI report into evidence or obtain the testimony of the individual who
performed the analysis. Consequently, there is no evidence in the record that would explain the
meaning of this conclusion. In addition, the officers who processed the crime scene did not locate
22
any shoes in the apartment that matched the tread pattern present in the footprints, and the shoes
that Mr. Brown wore at the time of the shooting were never recovered. There is no evidence in
the record that tends to establish that the shoes that Mr. Brown wore in the photographs taken after
the murder are the same shoes that he wore at the time—a fact that is especially significant given
that other evidence demonstrates at least two occasions on which Mr. Brown changed into new
clothing and discarded the old.
{¶50} Mr. Brown’s final argument is that his conviction is against the manifest weight of
the evidence because the results of the police investigation are not worthy of confidence.
Specifically, Mr. Brown argues that the police did not gather latent fingerprints or touch DNA
evidence or inspect certain exterior areas surrounding the property, including garbage cans,
vehicles, and the backyards of neighbors. The investigating officers, however, described the scope
of their investigation and explained why it was appropriate under the circumstances. Compare
State v. Dumas, 9th Dist. Medina No. 20CA0029-M, 2021-Ohio-1534, ¶ 32. Moreover, there is
no requirement that a conviction be supported by the introduction of scientific evidence. See State
v. Tyus, 9th Dist. Summit No. 29520, 2020-Ohio-4455, ¶ 56, citing State v. Finley, 2d Dist.
Montgomery No. 19654, 2004-Ohio-661, ¶ 31-36.
{¶51} Given the evidence at trial, we cannot conclude that this is the exceptional case in
which the evidence weighs heavily against the conviction. See Otten, 33 Ohio App.3d at 340,
citing Martin, 20 Ohio App.3d at 175. Mr. Brown’s fifth assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED WHEN IT FAILED TO PROPERLY INSTRUCT
THE JURY OF THE LESSER INCLUDED OFFENSE OF RECKLESS
HOMICIDE AND NEGLIGENT HOMICIDE, FOR COUNTS ONE AND TWO,
MURDER AND THE LESSER INCLUDED OFFENSE OF ASSAULT AND
NEGLIGENT ASSAULT, FOR COUNTS THREE AND FOUR, FELONIOUS
ASSAULT.
23
{¶52} Mr. Brown’s second assignment of error argues that the trial court erred by failing
to instruct the jury on lesser included offenses because the evidence does not demonstrate that Mr.
Brown acted purposely or knowingly. This Court does not agree.
{¶53} When determining whether one offense is a lesser included offense of another,
courts must consider “whether one offense carries a greater penalty than the other, whether some
element of the greater offense is not required to prove commission of the lesser offense, and
whether the greater offense as statutorily defined cannot be committed without the lesser offense
as statutorily defined also being committed.” State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-
2974, paragraph two of the syllabus. In doing so, courts must compare the elements of each crime,
and “[a]n offense that includes an element that another offense lacks cannot be a lesser included
offense of that other offense.” Owens, 162 Ohio St.3d 596, 2020-Ohio-4616, at ¶ 8.
{¶54} With respect to Mr. Brown’s conviction for felony murder predicated on felonious
assault, his argument that he was entitled to a jury instruction for reckless homicide fails under this
analysis. Id. at ¶ 9-12. Because the felony murder statute imposes no additional mens rea apart
from that required for the underlying offense, “reckless homicide[,]” which is the lesser offense,
“has an element that felony murder lacks—recklessness with regard to the death of the victim.”
Id. at ¶ 10-12. Mr. Brown’s argument regarding negligent homicide and felony murder fails for
the same reason. R.C. 2903.05, which prohibits negligent homicide, requires negligence with
regard to the death of the victim. Consequently, negligent homicide—the lesser offense—contains
an element that felony murder lacks. Compare Owens at ¶ 11-12.
{¶55} Mr. Brown also argues that the trial court erred by failing to instruct the jury on
negligent and reckless homicide, with respect to his conviction for murder in violation of R.C.
2903.02(A), and negligent assault, with respect to the predicate offenses of felonious assault.
24
“Negligent homicide is not a lesser included offense of murder.” State v. Koss, 49 Ohio St.3d 213(1990), paragraph four of the syllabus. Reckless homicide, however, is a lesser included offense
of murder in violation of R.C. 2903.02(A). State v. Ivery, 9th Dist. Summit No. 28551, 2020-
Ohio-3349, ¶ 8, 30. Negligent assault is also a lesser included offense of felonious assault. State
v. Robinson-Bey, 9th Dist. Summit No. 28740, 2018-Ohio-5224, ¶ 46.
{¶56} A jury instruction on a lesser included offense, however, is required only when the
evidence presented at trial “would reasonably support both an acquittal on the crime charged and
a conviction upon the lesser included offense.” (Emphasis added.) State v. Thomas, 40 Ohio St.3d
213 (1988), paragraph two of the syllabus. In making this determination, courts must view the
evidence in the light most favorable to the defendant. State v. Monroe, 105 Ohio St.3d 384, 2005-
Ohio-2282, ¶ 37, citing State v. Campbell, 69 Ohio St.3d 38, 47-48 (1994). Mr. Brown’s
arguments are focused on the mens rea necessary to establish the offenses of which he was
convicted. Consequently, he argues that the evidence at trial would reasonably support an acquittal
on the murder and felonious assault charges because it does not demonstrate that he acted
purposefully, with respect to murder, or knowingly, with respect to felonious assault.
{¶57} In support of his arguments, Mr. Brown points to S.F.’s testimony that Mr. Brown
and L.S. enjoyed a good relationship, that they were engaged in horseplay prior to the shooting,
and that he did not witness the shooting itself. As discussed in connection with Mr. Brown’s fourth
assignment of error, however, the trial record is replete with evidence tending to demonstrate that
Mr. Brown acted purposefully or knowingly. Even viewing the evidence at trial in the light most
favorable to Mr. Brown, this Court cannot conclude that Mr. Brown could reasonably have been
acquitted of murder or felonious assault. Because a jury instruction on a lesser included offense
is only required when the evidence presented at trial “would reasonably support both an acquittal
25
on the crime charged and a conviction upon the lesser included offense[,]” Mr. Brown’s arguments
fail on that basis. (Emphasis added.) Thomas at paragraph two of the syllabus.
{¶58} Mr. Brown’s second assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 6
MR. BROWN DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL
AS GUARANTEED BY THE SIXTH AMENDMENT.
{¶59} In his sixth assignment of error, Mr. Brown argues that he received ineffective
assistance of counsel in the trial court. Specifically, Mr. Brown attributes the delay in bringing his
case to trial to the actions of counsel and argues that the delay deprived him of a fair trial. This
Court does not agree.
{¶60} In order to demonstrate ineffective assistance of counsel, a defendant must show
(1) deficiency in the performance of counsel “so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment” and (2) that the errors made by
counsel were “so serious as to deprive the defendant of a fair trial[.]” Strickland v. Washington,
466 U.S. 668, 687 (1984). A defendant must demonstrate prejudice by showing that, but for
counsel’s errors, there is a reasonable possibility that the outcome of the trial would have been
different. Id. at 694. “A defendant’s failure to satisfy one prong of the Strickland test negates a
court’s need to consider the other.” State v. Madrigal, 87 Ohio St.3d 378, 389 (2000), citing
Strickland at 697.
{¶61} As discussed in this Court’s disposition of his first assignment of error, Mr. Brown
expressly waived his right to a speedy trial in writing and did not file a formal objection and
demand for trial. See generally King, 70 Ohio St.3d at 160, citing O’Brien, 34 Ohio St.3d at
paragraph one of the syllabus; Bray, 2004-Ohio-1067, at ¶ 8. The record does not demonstrate a
deficiency in the performance of counsel in this regard. See generally Madrigal at 390-391 (noting
26
that in a direct appeal, ineffective assistance of counsel must be demonstrated by evidence within
the record).
{¶62} Even if the pretrial delay could be attributed to deficient performance on the part of
trial counsel, this Court could not conclude that the record demonstrates that Mr. Brown was
prejudiced. Mr. Brown suggests that witnesses at trial must necessarily have suffered from lapses
in memory over time and, consequently, that the result of his trial would have been different had
he been brought to trial sooner. In support of this argument, he points to the testimony of a single
witness regarding a single issue: during his cross-examination, Sergeant Camarillo testified that
he submitted images of Mr. Brown’s shoes to the FBI in the hopes of obtaining a match for the
tread pattern, but Sergeant Camarillo did not at first recall that he had received a report from the
FBI. As discussed in connection with Mr. Brown’s fifth assignment of error regarding manifest
weight, however, Sergeant Camarillo’s testimony regarding the tread evidence was of limited
value to the defense regardless.
{¶63} Mr. Brown’s suggestion that this Court can extrapolate from this single facet of
Sergeant Camarillo’s testimony that his entire trial was tainted by faded memories is also not
persuasive. Prejudice owing to ineffective assistance of counsel cannot be demonstrated by means
of conjecture or speculation. Compare State v. McQuistan, 9th Dist. Medina No. 18CA0104-M,
2019-Ohio-3612, ¶ 25 (considering a speculative prejudice argument in the context of a petition
for postconviction relief). There are difficulties inherent in proving prejudice as a result of fading
memory over time. See generally State v. Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, ¶ 19-29
(discussing proof of “actual prejudice” in the context of preindictment delay). In this case, the
testimony at trial was both extensive and detailed, and the exhibits were exhaustive.
27
{¶64} Mr. Brown’s final argument regarding prejudice is that trial counsel, who was Mr.
Brown’s third attorney, must necessarily have lacked time to prepare. He maintains that after his
first attorney withdrew, his second attorney withdrew because he did not have time to prepare.
These representations, however, are inconsistent with the record. Mr. Brown’s second attorney
withdrew not because there was insufficient time to prepare for trial, but because he had
unexpected medical problems that prevented him from trying the case. His third attorney assured
the trial court that he could be adequately prepared for trial, and there is nothing in the record to
the contrary. Accordingly, the record does not indicate that the result of Mr. Brown’s trial would
have been different absent the delay that occurred.
{¶65} Mr. Brown’s sixth assignment of error is overruled.
III.
{¶66} Mr. Brown’s assignments of error are overruled. The judgment of the Lorain
County Court of Common Pleas is affirmed.
Judgment affirmed.
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 Lorain, 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
28
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 to Appellant.
LYNNE S. CALLAHAN
FOR THE COURT
HENSAL, P. J.
TEODOSIO, J.
CONCUR.
APPEARANCES:
GIOVANNA V. BREMKE, Attorney at Law, for Appellant.
J. D. TOMLINSON, Prosecuting Attorney, and BRIAN P. MURPHY, Assistant Prosecuting
Attorney, for Appellee.