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State v. Brown

December 8, 2008

STATE OF OHIO APPELLEE
v.
EDWARD L. BROWN, JR. APPELLANT



APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 06CR070622.

The opinion of the court was delivered by: Moore, Judge.

DECISION AND JOURNAL ENTRY

{¶1} Appellant, Edward Lee Brown, Jr., appeals his conviction from the Lorain County Court of Common Pleas. This Court affirms.

I.

{¶2} On May 3, 2006, Brown was indicted on six counts of unlawful sexual conduct with a minor, one count of receiving stolen property, and one count of theft. The indictment alleged that between March 1, 2005 and July 31, 2005, Brown, who was over the age of 18 at the time, knowingly, or with reckless disregard to age, engaged in sexual conduct on several occasions with a minor 13 years of age or older, but under the age of 16. Brown pled not guilty to all charges.

{¶3} On November 26, 2007, Brown withdrew his not guilty plea. He pled guilty to one count of receiving stolen property and one count of theft, maintaining his not guilty plea to the remaining six counts of unlawful sexual conduct with a minor. On December 4, 2007, the indictment was amended to change the timeline of the alleged offenses to between February 23, 2005 and July 31, 2005. The parties stipulated to the date of birth of H.S., the victim, as February 22, 1991, as well as Brown's date of birth, May 12, 1986.

{¶4} The case proceeded to a jury trial on December 3, 2007. On December 4, 2007, Brown was convicted on one count of unlawful sexual conduct with a minor, and found not guilty as to the remaining five counts in the indictment. On January 2, 2008, Brown was sentenced to 22 months of incarceration and classified as a Tier Two sexual offender.

{¶5} Brown filed a notice of appeal to this Court on January 31, 2008. He raises one assignment of error for our review.

II.

ASSIGNMENT OF ERROR

"THE VERDICT IN THIS CASE IS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE AND SHOULD BE REVERSED BECAUSE IT VIOLATES THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE CONSTITUTION OF THE STATE OF OHIO."

{¶6} In his sole assignment of error, Brown argues that his conviction was against the manifest weight of the evidence and based on insufficient evidence as a matter of law. We disagree.

{¶7} "While the test for sufficiency requires a determination of whether the state has met its burden of production at trial, a manifest weight challenge questions whether the state has met its burden of persuasion." State v. Gulley (Mar. 15, 2000), 9th Dist. No. 19600, at *1, citing State v. Thompkins (1997), 78 Ohio St.3d 380, 390 (Cook, J., concurring). We also note that "because sufficiency is required to take a case to the jury, a finding that a conviction is supported by the weight of the evidence must necessarily include a finding of sufficiency. Thus, a determination that [a] conviction is supported by the weight of the evidence will also be dispositive of the issue of sufficiency." (Emphasis omitted.) State v. Roberts (1997), 9th Dist. No. 96CA006462, at *2.

{ΒΆ8} Thus, we will first address Brown's claim that his conviction was against the manifest weight of the evidence, as it is ...


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