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State v. Brown

Court of Appeals of Ohio, Fifth District

July 15, 2013

STATE OF OHIO Plaintiff-Appellee
v.
WILLIAM G. BROWN Defendant-Appellant

Criminal appeal from the Richland County Court of Common Pleas, Case No. 2012-CR-176 D

For Plaintiff-Appellee JAMES J. MAYER, JR. Prosecuting Attorney JOHN NIEFT

For Defendant-Appellant WILLIAM CRAMER

Hon. W. Scott Gwin, P.J. Hon. Sheila G. Farmer, J. Hon. John W. Wise, J.

OPINION

Gwin, P.J.

{¶1} Defendant-appellant William G. Brown ("Brown") appeals from the July 2, 2012 Judgment Entry of the Richland County Court of Common Pleas convicting and sentencing him after a jury trial on one count of Failure to Comply with an Order or Signal of a Police Officer, a violation of R.C. 2921.331(B), elevated to a third-degree felony by the allegation that Brown's operation of his motor vehicle caused a substantial risk of serious physical harm to persons or property and one count of Possession of Criminal Tools, a violation of R.C. 2923.24(A), a felony of the fifth degree.

Facts and Procedural History

{¶2} Brown was stopped around noon on March 7, 2012, going southbound on I-71. Trooper Murfield and his trainee, Trooper Adkins, had noticed that Brown's truck had a large gap between the tailgate and the bumper, which, from training and experience, indicated that there was a hidden compartment beneath the truck bed. Trooper Murfield checked the truck speed and saw that it was five mph over the limit, so they initiated a traffic stop. The truck pulled over, and Murfield and Adkins approached the truck on the passenger side. Brown was the driver and said that he was returning to his home in Alabama after visiting family in Youngstown.

{¶3} Upon approaching the vehicle, Trooper Murfield detected an odor of raw marijuana coming from the truck cab. Trooper Murfield told Brown to put the keys on the dashboard and exit his vehicle. A canine unit was requested. As Trooper Murfield got to the door of Brown's truck, Brown put the keys back in the ignition and fled down I-71 South. Troopers Murfield and Adkins quickly returned to their cruiser and pursued Brown, relaying this information over the radio. This began a high-speed pursuit. The trooper's cruiser camera captured the ensuing chase and the video was played for the jury.

{¶4} Brown led law enforcement on a thirty-minute, high-speed chase in and around Bellville, Ohio. Brown drove at speeds of 80 mph through residential areas of Bellville, 60 mph through downtown Bellville, and 90 mph near Clear Fork High School, which was in session. The speed limits for these areas ranged from 55 mph on the outskirts of Bellville to 25 mph in downtown Bellville. By the end of the pursuit Ohio State Highway Patrol, the Richland County Sheriffs Office, Bellville Police Department, Lexington Police Department, and Mansfield Police Department, had joined in attempting to stop Brown.

{¶5} During the pursuit, Sheriffs deputies tried to deploy stop sticks at several locations. Sgt. Zehner of the Richland County Sheriffs Office deployed stop sticks after a bridge where he did not think Brown could avoid the spikes. Brown swerved off the road, down an embankment, and into a field. The deputy thought Brown was going to hit his cruiser, so he fled down the embankment on foot and was almost hit by Brown when he came down the embankment. Trooper Murfield hit these stop sticks, but was able to maneuver his cruiser to attempt to keep Brown off the road and in the field. Brown rammed the front of Trooper Murfield's cruiser as he returned to the road.

{¶6} Trooper Berengo took over as lead when Trooper Murfield's cruiser was incapacitated. Brown's truck struck stop sticks soon after on Possum Run Road. Brown pulled into a Wal-Mart parking lot, drove through parked cars, and in front of the doors as his tires deflated. The pursuing officers circled around Brown to close off exits from the Wal-Mart parking lot. Brown turned into the parking lot of La Quinta Inn. He stopped his truck in front and ran inside the hotel. Brown was peacefully apprehended inside the hotel.

{¶7} After the arrest and on the scene, Trooper Morrow read Brown his Miranda rights and questioned him about the pursuit. Brown said that he had panicked. During the inventory search of the vehicle prior to impound, a Crown Royal bag was found with $45, 000 cash in it. Brown said that that money had come from his trucking business. Brown had a valid CDL and the truck was titled to him, but registered to his wife.

{¶8} Following the impound of the truck, it was examined for a hidden compartment at the Ohio State Highway Patrol Post. Trooper Morrow had his drug dog, Hera, walk around the vehicle. Hera alerted on the area between the left rear tire and cab area. Hera also alerted on the money from the Crown Royal bag. The tailgate area looked odd because it was clean while the rest of the paint on the truck was dirty. The troopers pried off the false bottom of the bed, which was hiding a four-inch deep bed beneath it. The false bed had been closed, sealed, and painted underneath the truck bed. Inside the bed were duct tape, a broom handle and bleach. There were also several air fresheners in the cab.

{¶9} The prior owner of the truck testified that he bought the truck at an auction, and fixed the right rear quarter panel and the rear bumper, before selling it to Brown in May 2011. The prior owner denied that the truck had a secret compartment when he got it and denied adding a secret compartment before selling it to Brown.

{¶10} A trooper testified that the broomstick and duct tape were often used to reach into compartments and pull out contraband, and drug couriers often use bleach to try to cover the smell of drugs. However, troopers did not find any contraband.

{¶11} The jury found Brown guilty as charged. The jury specifically found that Brown had caused a substantial risk of serious physical harm to persons or property. Brown was sentenced to maximum consecutive sentences, totaling four years' incarceration and three years' post release control. Brown was also given a 36-month operator's license suspension and ordered to pay restitution for the deductible of the damage to the cruiser he struck.

Assignments of Error

{¶12} Brown raises six assignments of error,

{¶13} "I. APPELLANT WAS DEPRIVED OF HIS RIGHTS TO DUE PROCESS AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND THE OHIO CONSTITUTION, ARTICLE I, SECTION 16, BECAUSE THERE WAS INSUFFICIENT EVIDENCE THAT APPELLANT'S OPERATION OF A MOTOR VEHICLE CAUSED A SUBSTANTIAL RISK OF SERIOUS PHYSICAL HARM.

{¶14} "II. THE JURYS FINDING THAT APPELLANT'S OPERATION OF THE MOTOR VEHICLE CAUSED A SUBSTANTIAL RISK OF SERIOUS PHYSICAL HARM TO PERSONS OR PROPERTY WAS NOT SUPPORTED BY THE WEIGHT OF EVIDENCE.

{¶15} "III. APPELLANT WAS DENIED HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND THE OHIO CONSTITUTION, ARTICLE I, SECTION 16, WHEN THE TRIAL COURT FAILED TO REPEAT THE JURY INSTRUCTIONS AFTER CLOSING ARGUMENTS IN VIOLATION OF CRIM.R. 30.

{¶16} "IV. APPELLANT'S WAS DEPRIVED OF HIS RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND THE OHIO CONSTITUTION, ARTICLE I, SECTION 10, WHEN TRIAL COUNSEL FAILED TO OBJECT TO THE TRIAL COURT GIVING THE JURY INSTRUCTIONS PRIOR TO CLOSING ARGUMENTS IN VIOLATION OF CRIM.R. 30.

{¶17} "V. THE TRIAL COURT VIOLATED R.C. 2929.18 BY ORDERING RESTITUTION IN AN UNSPECIFIED AMOUNT.

{¶18} "VI. THE TRIAL COURT VIOLATED DEFENDANTS STATE AND FEDERAL CONSTITUTIONAL PROTECTIONS AGAINST DOUBLE JEOPARDY AND R.C. 2945.25 BY FAILING TO MERGE DEFENDANTS CONVICTIONS FOR POSSESSION OF ...


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