Appeal from the Muskingum County Court of Common Pleas, Case No. CR2012-0146
For Plaintiff-Appellee ROBERT L. SMITH Assistant Prosecuting Attorney
For Defendant-Appellant DAVID A. SAMS
Hon. W. Scott Gwin, Hon. Sheila G. Farmer, J. Hon. Craig R. Baldwin, J.
(¶1} Appellant Rarecole L.E. Brown appeals a judgment of the Muskingum County Common Pleas Court convicting him of felonious assault (R.C. 2903.11(A)(2)) with a firearm specification (R.C. 2941.145) and having a weapon under disability (R.C. 2923.13(A)(3)). Appellee is the State of Ohio.
STATEMENT OF FACTS AND CASE
(¶2} On June 1, 2012, Justin Minor was living with a friend in Zanesville, Ohio, whom he knew only by his first name of George. Minor made a living selling drugs, specifically heroin and crack. He knew George from dealing drugs, and had been living with George and a man named "T" for about four days. Justin's brother Samson had lived in the house at one time, and had installed a camera system in the house. Justin paid rent to George in drugs rather than cash.
(¶3} During the evening of June 1, 2012, Minor was hanging out at the house with George, T, and appellant, who Minor had known for years. Minor was selling drugs, and ran out of heroin. Because no one among the group at the house had a valid driver's license, Minor called a customer named Nick Large to drive appellant to Columbus to get more heroin, as well as some crack cocaine. Minor sent $2200 with them for two ounces of heroin, and another $200 for crack. Minor stayed at the house with T and George, as well as his girlfriend Keree and a woman named Lisa.
(¶4} On the camera system, Minor saw appellant return from Columbus. When Minor asked appellant for the crack, appellant would not give him the drugs. Initially the crack was to be split evenly between Nick Large and Minor, but appellant now wanted some of the crack for his trouble in making the trip to Columbus. Minor agreed to give appellant half of his share.
(¶5} Appellant used a scale in the kitchen to weigh the crack. However, Minor noticed that appellant was taking the larger pieces for himself and giving Minor the crumbs. The two of them argued, and appellant pulled out a gun and shot Minor in the abdomen. Appellant began pacing back and forth, saying, "Look what you made me do." Minor told appellant to get out of there and appellant took off running.
(¶6} Nick Large called 911 during the early morning hours of June 2, 2012, and reported the incident as a drive-by shooting. Police arrived and found Minor lying on the porch, wounded. Police found a hat and a gun about a block away from the shooting.
(¶7} Appellant called Minor while Minor was recuperating in the hospital, and again after he was released from the hospital. Appellant asked Minor to "keep it in the streets, " and Minor responded that he would "stick to the script."
(¶8} Police interviewed appellant concerning the shooting. He claimed that he was not in Zanesville on the day of question.
(¶9} Appellant was charged with attempted murder, felonious assault and having a weapon under a disability. The case proceeded to jury trial in the Muskingum County Common Pleas Court.
(¶10} At trial, appellant admitted that he traveled to Columbus with Nick Large to pick up drugs for Minor. He testified that he went into the bathroom after returning, and when he came out Minor said, "Where the fuck is my shit?" Tr. 436. Appellant testified that he told Minor he gave it to him, and Minor replied, "No, man, my shit short." Minor accused appellant of stiffing him, and the two argued. Minor then pulled out a gun. When appellant tried to take the gun from Minor, the gun went off. He testified that he lied to police earlier because he was on probation and being around Minor, a convicted felon, would send him back to prison. He also testified that he lied to police because he never thought Minor would implicate him as the shooter.
(¶11} Appellant was acquitted of attempted murder, but convicted of felonious assault with the firearm specification and having a weapon under disability. He was sentenced to eight years incarceration for felonious assault, three years incarceration for the firearm specification, and five years incarceration for having a weapon under disability. The five year sentence was to be served concurrently with the eight year sentence, for an aggregate term of eleven years incarceration. Appellant assigns the following errors on appeal:
(¶12} "I. DEFENDANT-APPELLANT WAS PREJUDICED BY THE INTRODUCTION OF UNRELIABLE AND INADMISSIBLE DNA EVIDENCE CONTRARY TO OHIO LAW AND THE STATE AND FEDERAL CONSTITUTIONS.
(¶13} "II. DEFENDANT-APPELLANT WAS PREJUDICED BY THE DENIAL OF HIS RIGHT TO CONFRONT HIS ACCUSER AND TO PRESENT A DEFENSE CONTRARY TO OHIO LAW AND THE STATE AND FEDERAL CONSTITUTIONS.
(¶14} "III. DEFENDANT-APPELLANT WAS DENIED A FAIR TRIAL BY PROSECUTORIAL MISCONDUCT CONTRARY TO OHIO LAW AND THE STATE AND FEDERAL CONSTITUTIONS.
(¶15} "IV. DEFENDANT-APPELLANT WAS PREJUDICED BY THE FAILURE OF THE TRIAL COURT TO GIVE PROPER JURY INSTRUCTIONS, WHICH ERROR FORECLOSED HIS DEFENSES OF ACCIDENT AND NECESSITY, AND BY THOSE ATTRIBUTING TO HIM AN AFFIRMATIVE DEFENSE OF SELF-DEFENSE, WHICH HE HAD NOT RAISED, CONTRARY TO OHIO LAW AND THE STATE AND FEDERAL CONSTITUTIONS.
(¶16} "V. DEFENDANT-APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONTRARY TO THE STATE AND FEDERAL CONSTITUTIONS.
(¶17} "VI. DEFENDANT-APPELLANT WAS PREJUDICED WHEN HE WAS SENTENCED TO A TERM OF 5 YEARS IMPRISONMENT FOR AN F-3 WEAPONS UNDER DISABILITY (WUD) WHEN AN F-3 WUD CARRIES A MAXIMUM TERM OF ONLY 36 MONTHS UNDER R.C. 2929.14(A)(3)(a-b) CONTRARY TO OHIO LAW AND THE STATE AND FEDERAL CONSTITUTIONS.
(¶18} "VII. DEFENDANT-APPELLANT WAS PREJUDICED BY CUMULATIVE ERROR CONTRARY TO OHIO LAW AND THE STATE AND ...