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State v. Brown

Court of Appeals of Ohio, Eighth District

July 18, 2013

STATE OF OHIO PLAINTIFF-APPELLEE
v.
RAPHEL BROWN DEFENDANT-APPELLANT

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-559366

ATTORNEY FOR APPELLANT Joseph Vincent Pagano

ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor Brent C. Kirvel Mollie Ann Murphy Assistant County Prosecutors

BEFORE: E.A. Gallagher, J., Jones, P.J., and Keough, J.

JOURNAL ENTRY AND OPINION

EILEEN A. GALLAGHER, J.

{¶1} Raphel Brown appeals his convictions and sentence in the Cuyahoga County Court of Common Pleas. For the following reasons, we affirm in part and reverse in part.

{¶ 2} A true bill indictment was returned against Brown charging him with seven counts of rape with sexually violent predator specifications; two counts of kidnapping with sexual motivation specifications and sexually violent predator specifications; aggravated burglary; intimidation of a crime victim or witness; resisting arrest; falsification;and breaking and entering.

{¶ 3} Relevant to the present appeal, the first four counts of the indictment were all alleged to have occurred in the victim's "back living room." The first count alleged that appellant vaginally penetrated the victim while each of Counts 2, 3 and 4 alleged that appellant anally penetrated the victim.

{¶ 4} Appellant pled not guilty and engaged in discovery with the state of Ohio, including filing a request for a bill of particulars pursuant to Crim.R. 7(E). The state filed a responsive bill of particulars with respect to those specific counts as follows:

Responding to the request of the Defendant, Raphel Brown, for a Bill of Particulars, the Prosecuting Attorney says that the State of Ohio will prove on the trial of the above-entitled case, the following:
Count 1: Rape, 2907.02(A)(2)
That on or about February 1, 2012, and at the location of [address], the Defendant Raphel Brown, did engage in sexual conduct, to wit: Vaginal Penetration in the back living room, with Jane Doe by purposely compelling her to submit by force or threat of force contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Ohio.
FURTHERMORE, the offender is a sexually violent predator.
Count 2: Rape, 2907.02(A)(2)
That on or about February 1, 2012, and at the location of [address], the Defendant Raphel Brown, did engage in sexual conduct, to wit: Anal Penetration in the back living room, with Jane Doe by purposely compelling her to submit by force or threat of force contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Ohio.
FURTHERMORE, the offender is a sexually violent predator.
Count 3: Rape, 2907.02(A)(2)
That on or about February 1, 2012, and at the location of [address], the Defendant Raphel Brown, did engage in sexual conduct, to wit: Anal Penetration in the back living room, with Jane Doe by purposely compelling her to submit by force or threat of force contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Ohio.
FURTHERMORE, the offender is a sexually violent predator.
Count 4: Rape, 2907.02(A)(2)
That on or about February 1, 2012, and at the location of [address], the Defendant Raphel Brown, did engage in sexual conduct, to wit: Anal Penetration in the back living room, with Jane Doe by purposely compelling her to submit by force or threat of force contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Ohio.
FURTHERMORE, the offender is a sexually violent predator.

{¶ 5} The case proceeded to trial where the following facts were presented:

{¶ 6} On February 1, 2012, M.O. returned to her home in Euclid at approximately 10:30 p.m. M.O.[1] fell asleep on a couch in the back family room of her home. She was awakened around 3:45 a.m. and saw a man dressed in black in the room with her. M.O. testified that the entrances to the home had been locked that night. The man ordered her to lay on her stomach on the floor and then he laid on top of her. He pulled her pants down and penetrated her with his penis twice in her vagina and twice in her anus. Each time she attempted to get up, the man pushed her back to the floor.

{¶7} The intruder forced M.O. to write a note stating that they engaged in consensual sex. The intruder picked her up and forced her into a bedroom in the home where he again penetrated her: twice in the anus and once in the vagina. After these rapes were committed, the intruder took her to a room that was lit well enough that she was able to see his face and she identified him at trial as the appellant. The intruder told M.O. that he had entered the home through a bedroom window on the side of the house. When he left the house, he unlocked the front door from the inside and he neglected to take with him the note that he caused M.O. to write.

{¶ 8} After appellant left, M.O. called her mother and the police, both of whom arrived on the scene. M.O.'s mother testified that upon arriving at the home, she observed a bedroom window on the side of the house to be open.

{¶ 9} Officer David Williams of the Euclid Police Department testified that he arrived at M.O.'s home on the morning of February 1, 2012, in response to a call reporting a rape at that location. Williams spoke with M.O. and received a description of the assailant and his clothing, which he then broadcast to other officers. Williams testified that he received information that a citizen had reported seeing the suspect on East 270 Street and he found appellant there, approximately one-quarter of a mile from the street where M.O. lived. Officer Williams engaged the appellant in conversation and the appellant identified himself as "Eddy Arnold." According to Officer Williams, appellant ran upon the approach of additional police officers.

{¶ 10} During a search of the area, appellant was found hiding in a garage on East 270. At trial, the homeowner of that property testified that appellant had no permission to enter her property.

{¶ 11} Detective David Roose testified that he was present at the garage on East 270. Appellant refused police orders to show his hands and exit the garage thereby necessitating the use of a taser on him. Roose testified that the taser was repeatedly deployed and that while he attempted to handcuff the appellant the appellant continued to physically resist.

{¶ 12} Detective Anthony Medved testified that he interviewed M.O. and also examined her home. He found an open, unlocked window believed to be the point of entry, trampled leaves outside the window, and a footprint with a leaf inside the home near the open window.

{¶ 13} M.O. was transported to Hillcrest Hospital where Courtney Kwapinski, a Sexual Assault Nurse Examiner ("a SANE nurse"), performed an examination and collected evidence including both vaginal and anal swabs. Ms. Kwapinski testified that M.O. complained of rectal pain, that she had a "possible notch versus estrogized hymen, " that the vaginal opening was red and "reddened" and that there were abrasions in the anal opening.

{¶ 14} The specimens obtained at Hillcrest as well as a bucal swab taken from the appellant and a standard from M.O. were submitted to the Ohio Bureau of Criminal Investigation where they were examined. The specimens were determined to be a mixture consistent with both appellant and M.O. indicating that appellant had sexual relations with M.O.

{¶ 15} At the conclusion of trial, appellant made a motion for acquittal pursuant to Crim.R. 29, which the trial court granted as to Count 11 — intimidation of a crime victim or witness. In addition, the trial court amended Count 14 — breaking and entering to criminal trespass.

{ΒΆ 16} The state failed to move to amend any of the rape charges in Counts 2, 3 or 4 from anal rape to vaginal rape and the trial court neglected to amend the indictment to conform to the evidence as provided in Crim.R. 7. The instructions to the jury as well as the verdict forms mirrored the indictment language as to those counts but for ...


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