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State v. Brown

Court of Appeals of Ohio, Ninth District

July 8, 2013

STATE OF OHIO Appellee
v.
LONNIE T. BROWN Appellant

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF WAYNE, OHIO CASE No. 11-CR-0127

CLARKE W. OWENS, Attorney at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, for Appellee.

(Baird, J., retired, of the Ninth District Court of Appeals, sitting by assignment pursuant to §6(C), Article IV, Constitution.)

DECISION AND JOURNAL ENTRY

WILLIAM R. BAIRD, Judge.

{¶1} Appellant Lonnie Brown appeals his conviction and sentence in the Wayne County Court of Common Pleas. This Court affirms in part, reverses in part, and remands for correction of the sentencing entry.

I.

{¶2} Jamie Hout was found dead in her home. Brown was subsequently indicted on one count of aggravated murder in violation of R.C. 2903.01(B), an unclassified felony; and one count of murder in violation of R.C. 2903.02(A), an unclassified felony. The matter proceeded to trial, at the conclusion of which the jury found Brown guilty of both counts. The murder count was merged with aggravated murder as an allied offense of similar import for purposes of sentencing. The trial court sentenced Brown to life in prison without parole. It further ordered that upon completion of his prison term, Brown would be subject to a mandatory five-year period of post-release control. Brown filed a timely appeal in which he raises six assignments of error for review.

II.

ASSIGNMENT OF ERROR I

THERE WAS INSUFFICIENT EVIDENCE TO CONVICT LONNIE T. BROWN, JR. OF AGGRAVATED MURDER UNDER COUNT 1, AND THE CONVICTION FOR AGGRAVATED MURDER WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶3} Brown argues that his conviction for aggravated murder was not supported by sufficient evidence and was against the manifest weight of the evidence. This Court disagrees. Sufficiency of the evidence

{¶4} This Court recognizes:

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.

State v. Galloway, 9th Dist No 19752, 2001 WL 81257, *3 (Jan 31, 2001), quoting State v Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus The test for sufficiency requires a determination of whether the State has met its burden of production at trial State v Walker, 9th Dist No 20559, 2001 WL 1581570, *2 (Dec 12, 2001); see also State v Thompkins, 78 Ohio St.3d 380, 390 (1997) (Cook, J, concurring).

{¶5} Brown was convicted of aggravated murder in violation of R.C. 2903.01(B), which states in pertinent part: "No person shall purposely cause the death of another * * * while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit, kidnapping, * * * [or] aggravated burglary * * *." Pursuant to R.C. 2901.22(A): "A person acts purposely when it is his 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 his specific intention to engage in conduct of that nature."

{¶6} Because the State charged Brown alternatively with either aggravated burglary or kidnapping as the underlying offense, for ease of analysis, this Court limits our review of the underlying felony to aggravated burglary. The relevant portion of the aggravated burglary statute as read to the jury without objection by either party is as follows: "No person, by force, stealth, or deception, shall trespass in an occupied structure * * * when another person other than an accomplice of the offender is present, with purpose to commit in the structure * * * any criminal offense, if * * * [t]he offender inflicts, or attempts or threatens to inflict physical harm on another[.]" R.C. 2911.11(A)(1). "Force" is satisfied by "any effort physically exerted." State v. Snyder, 192 Ohio App.3d 55, 2011-Ohio-175, ¶ 18-19 (9th Dist.). A criminal trespass occurs when one "without privilege to do so * * * [k]nowingly enter[s] or remain[s] on the land or premises of another[.]" R.C. 2911.21(A)(1). This Court recognizes that a privilege may be revoked and that a privilege to enter or remain upon the premises terminates immediately upon the commencement of an act of violence against the person granting the privilege. See State v. Watson, 9th Dist. No. 14286, 1990 WL 80550, *2 (June 13, 1990).

{¶7} Jamie Hout was found naked and dead in her home on May 5, 2011, after Brown fled from the home and yelled for a neighbor to call 911. Police arrived and secured the scene.

{¶8} Officer Michael Smith of the Orrville police department was dispatched to the scene, where he found Brown outside crying and saying that Ms. Hout was in the living room. Officer Smith found the victim lying naked in a pool of blood, with blood spatter throughout the living room. As other law enforcement personnel arrived on scene, Officer Smith spoke with Brown outside. Brown told him that Ms. Hout had been depressed lately due to the anniversary of her mother's death. He explained that he and the victim had a father-daughter type relationship and that they spoke every day. Brown explained that he last saw Ms. Hout two days earlier at her home but that she left abruptly to "go turn tricks" for some Mexicans. When he had not heard from Ms. Hout in two days, Brown went to her home only to find both the front and back doors locked. Brown told Officer Smith that he found that odd because both doors only lock from the inside, so he knew someone was inside. Brown said he peeked in a window, saw the victim's dog in a crate, got a stool, opened a back window, and crawled inside. Brown reported that, when he saw the victim lying in the living room, he ran out the front door and yelled for someone to call 911. Brown further reported that Ms. Hout called him about a week earlier and told him that she had stolen some cocaine from some Guatemalans. Officer Smith testified that he asked Brown if he would come to the police station to make a statement away from the "chaos" of the scene, and Brown agreed. Officer Smith explained that Brown was not under arrest and that he could leave at any time. Brown voluntarily spoke with Officer Smith and Detective Joshua Hunt on May 5, 2011, and completed a written statement. At that time, Officer Smith testified that the police were focusing their investigation on the Mexicans and Guatemalans who had contact with the victim based on Brown's statements. There is no dispute that Ms. Hout used crack cocaine on a regular basis, often with Brown, and that she had a reputation within the local Hispanic community of prostituting herself

{¶9} George Staley, a special agent in the Bureau of Criminal Identification and Investigation ("BCI") crime scene unit, was called to the scene just before dark. The police set up lighting inside the victim's home, because there was no electricity service to the home. Mr. Staley was on the scene for 13-14 hours, documenting evidence. He testified that there was a lot of blood and broken glass, including a broken bottle neck in a corner under a hutch in the living room.

{¶10} Mark Kollar, another BCI special agent, testified that Detective Hunt briefed him when he arrived on scene after dark. By that time, the police had reestablished electricity to the home. Agent Kollar was informed of Brown's statement that he entered the home through a rear window, found the victim on the living room floor, and immediately exited through the front door. Agent Kollar took numerous photographs of the scene and collected, packaged, and labeled physical evidence during the 17 hours he spent at the scene. The agent identified a picture of the rear window through which Brown entered the victim's home. A stool was outside beneath the window, while the screen was on the ground. Agent Kollar identified pictures of a broken beer bottle neck found in a corner, a broken glass candle holder, a tooth among glass shards, and the sleeve of a shirt curled up on the victim's back. He further testified that numerous blood swabs and fingerprints were taken from the scene. All evidence was transferred to Detective Hunt.

{¶11} Detective Hunt testified that he was briefed at the scene regarding the circumstances of the 911 call. He testified that he asked Brown to go to the police department to give a statement, and Brown agreed. Detective Hunt testified that, after Officer Smith spoke with Brown, he also questioned him on May 5, 2011, after informing him that he was not a suspect and was free to go at any time. Based on the detective's familiarity with the victim coupled with Brown's statement, Detective Hunt believed that the murder suspect was an Hispanic male with a connection to drugs. He interviewed several Hispanic men associated with Ms. Hout and obtained their DNA samples voluntarily. Further investigation, including a search of a residence of an Hispanic man with whom Ms. Hout had a relationship failed to produce any evidence relevant to the murder.

{¶12} Back at the scene, Detective Hunt received all evidence collected by the BCI agents and later secured it in the evidence room. He attended the victim's autopsy two days later where he received the victim's rape kit which he sealed and secured in the evidence room. Much of the evidence collected at the scene was later transported to BCI for analysis. On May 16, 2011, a representative from the BCI lab contacted Detective Hunt to inform him that two bloody fingerprints positioned upside down on the broken beer bottle neck found at the scene matched Brown. Moreover, the only DNA evidence found at the scene belonged to either the victim or Brown. At that time, Detective Hunt believed there was probable cause that Brown killed Ms. Hout. He called Brown and requested that he come to the station for a second interview. Brown voluntarily appeared, at which time the detective arrested him, read him his Miranda rights, and questioned him after Brown signed a waiver of his rights. Brown became angry when the detective confronted him with the evidence against him.

{¶13} Dr. Dorothy Dean, the deputy medical examiner who performed the postmortem examination on Ms. Hout, testified regarding the "tremendous damage" to the victim's face, forehead, and neck, including bruising, swollen eye lids and chin, numerous tears in the skin, exposed skull bones, missing teeth, jaw and nose fractures, ligature marks all around her neck, and a broken hyoid bone at the top of the throat. Dr. Dean opined that the victim's injuries presented two major types of causes of death, specifically, strangulation and severe blunt force trauma to the head and neck, either of which could have been fatal. Dr. Dean further opined that the nature of the ligature marks indicated that a broad, soft material, consistent with the sleeves of a shirt found wrapped around the victim's back at the scene, was used to strangle Ms. Hout. She further testified that a semi-circle indentation in the victim's skull bone was consistent with both the broken glass beer bottle neck and broken glass candle holder found at the scene. Dr. Dean issued a report of findings, upon which Dr. Amy Joliff, the Wayne County coroner, relied to conclude that the victim's cause of death was strangulation, with contributing factors of blunt and sharp force trauma.

{¶14} Dawn Limpert is a forensic scientist in the latent print unit at BCI. After citing her education, training, experience, and other qualifications, the trial court qualified her as an expert in the area of fingerprint/palm print processing and identification. Ms. Limpert then explained that patent prints are visible prints left on surfaces by a substance, like paint, grease, or blood, which coated the ridges of the print leaving behind an impression. She obtained fingerprint cards for the victim, two men with a relationship to the victim, and Brown. She testified that she examined the broken beer bottle provided by the Orrville police department relevant to this case and was able to see fingerprints thereon which were sufficient for comparison. Ms. Limpert testified that the ridge detail on the bottle appeared to have been made by a transfer of blood from the fingers to the bottle. Based on her examination, education, training, and experience, she concluded to a reasonable degree of scientific certainty that the bloody fingerprints on the bottle neck belonged to Brown. Moreover, she concluded that the placement of the fingerprints indicated that Brown held the bottle upside down, a position which would have indicated the bottle's use as a weapon.

{¶15} Lindsey Nelsen-Rausch is a forensic scientist in the forensic biology unit at BCI who examines evidence for the presence of bodily fluids and collects samples for later DNA testing. The trial court qualified her as an expert in that area. She testified that she examined four pieces of evidence collected relative to Ms. Hout's death, to wit: the neck of a broken beer bottle, a broken glass candle holder, the right shoe Brown was wearing at the scene, and Brown's eye glasses. Ms. Nelsen-Rausch testified that all items tested presumptively positive for blood. She collected blood from each item for later DNA testing by an expert in that field.

{¶16} Brenda Gerardi was a forensic scientist in the DNA section of BCI at the time relevant to the investigation of Ms. Hout's death. She is now the lab supervisor. The trial court qualified her as an expert in the area of identification of physiological fluids and DNA analysis. Ms. Gerardi testified that she had DNA standards, i.e., known record samples of individuals, for the victim, Brown, and 11 Hispanic men with known connections to the victim. She further had the DNA samples collected by Ms. Nelsen-Rausch from the neck of the beer bottle, candle holder, shoe, and Brown's glasses. She testified that there was not enough blood from the bottom of Brown's shoe to make an identification. However, she opined that the blood on both the broken glass candle holder and Brown's glasses belonged solely to the victim. Ms. Gerardi further opined that the blood on the broken beer bottle neck contained a DNA mixture from two individuals consistent with profiles from the victim and an unknown male. She was able to exclude all 11 Hispanic men as contributors from this blood profile, but she was not able to exclude Brown as a minor contributor to the sample. She clarified that there was simply not a large enough sample to make a clear finding with regard to Brown.

{¶17} Officer Jaime McGreal of the Orrville police department first met Brown outside the victim's home when she was dispatched to the scene. She testified that there was no way that Brown could have reentered the crime scene where the victim was found. On May 24, 2011, Officer McGreal collected a DNA sample from Brown after obtaining a search warrant. She sealed and labeled the swabs and transported them to the police station where they were logged into evidence.

{¶18} Sergeant William Stitt of the Orrville police department also responded to the scene within ten minutes. He testified that there was no time during which Brown could have reentered the crime scene while the sergeant was there. Sergeant Stitt watched Brown leave the scene with Officer Smith.

{¶19} Sonja Hall and Terry Miller lived across the back yard from Ms. Hout and both knew her as a neighbor. Both Ms. Hall and Mr. Miller testified that they saw Brown at the victim's home on May 4, 2011, between 3:00 and 5:00 p.m. Brown spoke with someone in a green jeep that pulled up to the victim's house, while the victim watched from her doorway. Ms. Hall testified that Ms. Hout then walked to the mailbox and retrieved her mail, and that Brown and the victim walked to the side of the house together. Mr. Miller testified that he saw a deputy and realtor at Ms. Hout's home on May 1, 2011, because they ...


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