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State v. Brunelle-Apley

December 5, 2008

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
PAUL D. BRUNELLE-APLEY, DEFENDANT-APPELLANT.



Criminal Appeal from the Court of Common Pleas, Case No. 07 CR 000644. Judgment: Affirmed.

The opinion of the court was delivered by: Mary Jane Trapp, J.

OPINION

{¶1} Paul D. Brunelle-Apley appeals from a judgment of the Lake County Court of Common Pleas which found him guilty of nine counts of unlawful sexual conduct with a minor and one count of corrupting another with drugs. He also appeals from the court's judgment sentencing him to a prison term of twelve years for these offenses and labeling him a sexual predator. For the following reasons, we affirm.

{¶2} Substantive Facts and Procedural History

{¶3} On September 21, 2007, Mr. Brunelle, twenty-six years old, was indicted on nine counts of unlawful sexual conduct with a minor in violation of R.C. 2907.04(A), felonies of the second degree, and one count of corrupting another with drugs in violation of R.C. 2925.02(A)(4)(a), a felony of the fourth degree. The first two counts of the unlawful sexual conduct with a minor involved a fifteen-year-old girl, J.A., and counts three through nine of the unlawful sexual conduct with a minor involved a fourteen-year-old girl, B.F. Count ten of corrupting another with drugs involved J.A.'s seventeen-year-old sister.

{¶4} On November 8, 2007, Mr. Brunelle's counsel moved for severance of these offenses for trial. The court held a hearing on this motion and denied it. Mr. Brunelle waived a jury trial and the case proceeded to a bench trial on November 27, 2007.*fn1

{¶5} The state presented twelve witnesses, including the three victims, their mothers, investigating officers, and a nurse who assisted Mr. Brunelle when he was tested and treated for the sexually transmitted diseases.

{¶6} The Fourteen-Year-Old Victim

{¶7} B.F., the fourteen-year-old victim in counts three to nine, testified that she met Mr. Brunelle in the summer of 2007 through his brother, who was dating her mother at the time. The two men stayed at the trailer in which B.F. and her mother lived in Madison, Lake County, Ohio, for two weeks. B.F. testified she and Mr. Brunelle were just friends at the beginning and it progressed into a "relationship." She testified she first had sex with him seven times on five occasions. The first three incidents occurred on the same day sometime in July 2007, in her room. He had her perform oral sex on him, and also digitally penetrated her. They then engaged in vaginal intercourse. A week later, they engaged in vaginal intercourse again in her room. A few days afterwards, they again engaged in vaginal intercourse in her trailer's living room. A week later, around the end of July, they engaged in vaginal intercourse in the woods behind the trailer, and again engaged in vaginal intercourse in the woods at the beginning of August. B.F. testified she told Mr. Brunelle she was fourteen when she first met him. She also testified she received a bouquet of flowers and a teddy bear on September 6, 2007, at her school, and she recognized his hand-writing on the card that came with the flowers.

{¶8} On cross-examination, B.F. stated Mr. Brunelle used a condom on the first occasion. She also stated in the second week of August, she stayed at her father's house, and when she returned she found out from Mr. Brunelle that he had sexual intercourse with one of her friends, J.A., while she was away. As a result, B.F. ended her "relationship" with Mr. Brunelle.

{¶9} B.F.'s mother testified that Mr. Brunelle stayed at her trailer for two weeks in the summer of 2007. She testified that when she found out about his age she told him to leave and to stay away from her daughter. A week later, however, he appeared at her trailer with a pair of tennis shoes for B.F. B.F.'s mother slammed the door and called the police, feeling it was odd that a twenty-six-year-old man was pursuing a fourteen-year-old girl. One day B.F. came home from school with a big bouquet of flowers, which prompted her mother to go to the school to speak with the school principal and the school security officer, Officer Caswell, about her suspicion regarding Mr. Brunelle. The next day Detective Boerner visited her and she filed a police report. She testified that she found out from her daughter then that Mr. Brunelle's relationship with her daughter was more than just a friendship.

{¶10} Officer Caswell testified that he talked to B.F.'s mother on the day Mr. Brunelle delivered the flowers to the school and identified through the police's computer system that Mr. Brunelle was the individual that delivered the flowers. He located Mr. Brunelle the next day in the trailer park where he lived, and advised him to stay away from the family.

{¶11} The Fifteen-Year-Old Victim

{¶12} J.A., the fifteen-year-old victim in counts one and two, testified she and her friend B.F. lived in the same trailer park and she met Mr. Brunelle through B.F. sometime in July of 2007.

{¶13} J.A. testified she and Mr. Brunelle engaged in sexual intercourse on two separate occasions in the summer of 2007. On the first occasion, they were watching the movie "300" at a trailer park where he was staying in Madison. While they were watching the movie, Mr. Brunelle asked her to have sex with him. J.A. testified: "[H]e kept asking me over and over and over again. I said no. Then I was afraid that he was going to hurt me so I said yes." J.A. stated that she was raped when she was younger so "it popped into [her] head that [Mr. Brunelle] might hurt [her] like [she] had been hurt before."

{¶14} J.A. testified they engaged in sexual intercourse on a second occasion in his bedroom while they were watching another movie, a week or two after the first incident. Describing the second incident, J.A. stated: "He did the same thing, by asking me over and over again and that time I felt like a really strong fear coming on from him or coming from me because he kept asking me and it was like he really said it in a really mean way." J.A. testified both incidents occurred after her fifteenth birthday, which was on July 30, 2007, and she told Mr. Brunelle she was fourteen when she first met him.

{¶15} J.A. testified that she experienced sharp pains in her sides as she and her family were leaving for a weekend camping trip on August 24, 2007. Her mother took her to the emergency room two days later, where she was tested for sexually transmitted diseases and the result came out positive. She stated she had had sexual intercourse with two other men a year before.

{¶16} On cross-examination, J.A. stated the first incident of sexual conduct with Mr. Brunelle occurred "sometime in July."

{¶17} J.A.'s mother also testified. She stated she took J.A. to the hospital for a bad stomach ache, where J.A. was tested for Chlamydia and Gonorrhea, and the result came out positive. That evening, she learned from J.A. that she and Mr. Brunelle had a sexual relationship. She went to the police station on the following Friday to fill out a statement regarding J.A.'s relationship with Mr. Brunelle. She testified when she returned home from the police station, Mr. Brunelle showed up in her yard. She described the encounter as follows:

{¶18} "He came walking around the corner of the house, the girls told me that he was out there. I went -- I walked out my front door. He had come out around the corner of the house and he came right out and just said, 'I am fucked.' And I'm like, I just, 'I don't know what you are talking about. What do you mean "you're fucked?'"

{¶19} "And he just repeated it to himself again. Said he was fucked. And then asked me what he had done that had made me so mad and I just played stupid. Said I didn't know what he was talking about."

{¶20} J.A.'s mother testified Mr. Brunelle had previously come to her for advice because he was interested in dating J.A., but she was interested in another boy. J.A.'s mother told Mr. Brunelle that there should not be any interest there because he was an adult and she was a child and it was not appropriate for him to have a relationship with her.

{¶21} Sergeant Barson testified that he received a dispatch call on September 7, 2007, regarding J.A.s mother's complaint to the police regarding a sexual relationship between Mr. Brunelle and her daughter. He also testified that a few days prior to that he had taken a complaint regarding a flower delivery at Madison High School and that he began to realize it was the same individual who was involved in both complaints.

{¶22} The Seventeen-Year-Old Victim

{¶23} Regarding J.A.'s sister, the seventeen-year-old girl involved in count ten, J.A.'s mother testified that on August 20, 2007, she came home to find Mr. Brunelle and J.A.'s sister sitting in the latter's bedroom. The room smelled of what she recognized as marijuana. She said to J.A.'s sister: "*** you look stoned. You're acting stoned. *** Somebody has been smoking marijuana in my house. What is going on?"

{¶24} J.A.'s sister testified that she met Mr. Brunelle through J.A. around the beginning of August. Mr. Brunelle spent time with both her and J.A. at their trailer park in Madison, Lake County. On August 20, 2007, she was alone with Mr. Brunelle in her room. She was upset and crying about something and he offered her marijuana, saying to her "just smoke some of it. That it would be fine. Life is too short to be depressed all the time." She told him no three times then "just kind of gave in." She testified that "he had some in a bag and some rolled up into a joint and we had smoked the joint." About half an hour later, her mother came home, walked in on them, and caught both of them sitting on her bed high. She testified that she had told Mr. Brunelle she was seventeen on a prior occasion.

{¶25} Admissions by the Defendant

{¶26} Captain Leonbruno, the jail administrator of the Lake County Adult Detention Facility, testified regarding the prison's telephone recording system. Detective Young testified about his job responsibility in retrieving phone calls in the jail's telephone recording system. He authenticated the recording of some telephone calls made by Mr. Brunelle while he was in the prison. He was heard referring to B.F. and J.A. as "two bitches that wanted to sleep with him" in a phone call to his mother

{¶27} Detective Boerner testified that on September 8, 2008, he talked to Mr. Brunelle about the complaints involving both J.A. and B.F. Mr. Brunelle denied any involvement in the complaint involving J.A., but admitted sending the flowers to the school. He also admitted he had smoked marijuana with J.A.'s sister. Mr. Boerner also testified he talked to J.A.'s sister about the complaint involving J.A., and learned that Mr. Brunelle was told by her mother to stay away from their residence because she had caught them smoking marijuana in her bedroom.

{¶28} Detective Boerner testified that he arrested Mr. Brunelle on September 8, 2008, read him the Miranda rights, and transported him to Lake East Hospital for STD testing. While en route to the hospital, Mr. Brunelle admitted to having sex with J.A. and made the admission again at the hospital. The trial transcript reflects the following testimony by Detective Boerner:

{¶29} "A. *** [T]here were several times during the drive out there that the Defendant, you know, made admissions as to having sex with [J.A.], you know, basically said, 'I had sex with her.'

{¶30} "*** [H]is additional comments to that were, 'I didn't do anything to hurt her that hadn't already been done to her.' At this point *** he also stated that he had sex with [J.A.'s] mother allegedly; that he saw no difference as to her mother, ten years older than him, he didn't see much of a big deal between ten years, plus or minus, age difference between him and [J.A.].

{¶31} " *** .

{¶32} "Q: Okay. What, if any, admissions did the Defendant make while he was at Lake East Hospital?

{¶33} "A: The Defendant had admitted he slept with a fifteen-year-old girl [and] that's why he was in this predicament. The Defendant again stated that, you know, he had not done anything to these girls that hadn't already been done to them. He didn't liken himself as a sicko or pervert. He didn't see himself as taking their innocence from them. He basically said they were grown up. They weren't, you know, younger girls, you know, ten, nine, you know, younger. He said that he wouldn't be in this predicament basically if he hadn't gotten his dick wet.

{¶34} "Q: Those were the Defendant's words?

{¶35} "A: Those were his exact words."

{¶36} The trial transcript also contains the following testimony of Detective Boerner on cross-examination regarding the circumstances surrounding Mr. Brunelle's admission regarding J.A. while in the detective's patrol car en route to the hospital:

{¶37} "Q: *** What did he say exactly?

{¶38} "A: That he had sex with [J.A.].

{¶39} "Q: What did he say before that and after that? Is that just kind of [] right there?

{¶40} "A: He is just talking about relationships with girls and how he is not an unattractive male, doesn't have to sleep with juveniles, that girls kind of throw themselves at him, is he really going to turn it down."

{¶41} Detective Boerner also stated that "the only other questions I asked with reference to [J.A.] was how many times and his answer was two."

{¶42} Detective Boerner also testified that Brenda Thompson, a nurse working at the emergency room, also heard certain comments made by Mr. Brunelle.

{¶43} In addition, Detective Boerner stated that during the procedure for the STD tests, he observed scarring and tissue damage in Mr. Brunelle's genital, giving it an abnormal appearance.

{¶44} Nurse Thompson, a nurse from Lake East Hospital System, testified that on September 8, 2007, she treated Mr. Brunelle when he came into to the emergency room with a detective to be tested for STDs. While she was in the room momentarily with Mr. Brunelle, he made a comment stating: "This is what I get when I sleep with a 15 year old girl."

{¶45} Deputy Shadeowen from the Lake County Sheriff's Office testified that he transported Mr. Brunelle from the jail to the courthouse for the court procedure involving his waiver of jury trial, and Mr. Brunelle made a comment that "It is like they are trying to *** charge me with every time I stuck my dick in her."

{¶46} The defense did not present any evidence. At the close of the trial, Mr. Brunelle's counsel moved for a dismissal pursuant to Crim.R. 29(A), which the court denied. The court found him guilty of all ten counts. On December 4, 2007, it entered a judgment convicting him of these counts and referred the matter for a pre-sentence report and a HB 180 evaluation.

{¶47} On December 31, 2007, the court held a sexual predator and sentencing hearing. The court found Mr. Brunelle to be a sexual predator and sentenced him to five years in prison each for count one and count two, to be served concurrently, six years on each count of counts three through nine, to be served concurrently to each other but consecutive to counts one and two, and one year on count ten, to be served consecutive to the other counts. HIs prison term totals twelve years.

{¶48} Mr. Brunelle now appeals, raising four assignments of error for our review.

{¶49} "[1.] The trial court erred to the prejudice of Defendant-Appellant when it convicted Defendant-Appellant of Ten Counts based upon insufficient evidence and said decision was against the manifest weight of the evidence.

{¶50} "[2.] Defendant-Appellant was provided ineffective assistance of counsel at the trial below because counsel failed to renew Defendant-Appellants' Motion for Severance of the offenses subsequent to close of the prosecutor's case.

{¶51} "[3.] The Court below errored [sic] when it sentenced Defendant-Appellant unreasonably because said decision was based upon a mistake of fact.

{¶52} "[4.] The Court below errored [sic] to the prejudice of Defendant-Appellant when it labeled him as a sexual predator because said decision was based upon a mistake of fact."

{ΒΆ53} In his first assignment of error, although Mr. Brunelle references sufficiency and manifest weight claims with regard to all ten counts, a reading of the arguments under this assignment of error indicates he raises the following specific claims: (1) his conviction of count one was based on insufficient evidence, and (2) his convictions of all ten ...


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