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State v. Brown

Court of Appeals of Ohio, Eleventh District, Trumbull

June 12, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
FELIX O. BROWN, JR., Defendant-Appellant.

         Criminal Appeal from the Trumbull County Court of Common Pleas. Case No. 1995 CR 00127.

          Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant Prosecutor, Administration Building, Fourth Floor, (For Plaintiff-Appellee).

          Felix O. Brown, Jr., pro se, (Defendant-Appellant).

          OPINION

          TIMOTHY P. CANNON, J.

         {¶1} Appellant, Felix O. Brown, Jr., appeals the October 14, 2016 judgment of the Trumbull County Court of Common Pleas denying his "Motion to Vacate Void Judgment." For the following reasons, we affirm the trial court's judgment.

         {¶2} Seventeen years ago, a jury found appellant guilty of murder, in violation of R.C. 2903.02, with a firearm specification under R.C. 2941.145 and having weapons while under disability, in violation of R.C. 2923.13. Appellant appealed from his conviction. The conviction was upheld by this court in State v. Brown, 11th Dist. Nos. 95-T-5349 & 98-T-0061, 2000 WL 522339 (Mar. 31, 2000).

         {¶3} On August 25, 2011, appellant filed a "Civil Rules Rule 60(B) motion for relief from judgment, or in the alternative, Crim.R. 47 motion to vacate judgment, " arguing the trial court's judgment of conviction was void due to misnomer. On September 20, 2011, appellant filed a motion to amend the Civ.R. 60(B)/Crim.R. 47 motion, requesting to include the argument that the trial court violated the statutory mandate of R.C. 2945.11 when it refused to instruct the jury on the law of accident.

         {¶4} The trial court denied appellant's Civ.R. 60(B)/Crim.R. 47 motion and overruled his motion to amend. On appeal, this court affirmed. State v. Brown, 11th Dist. Trumbull No. 2011-T-0101, 2012-Ohio-4465. We found the argument in appellant's motion to amend was barred by res judicata because he could have raised it on direct appeal.

         {¶5} On August 25, 2016, appellant filed a motion to vacate void judgment, stating the motion was filed in accordance with Crim.R. 47. Appellant alleged his judgment of conviction is void because the trial court acted without authority when it failed to instruct the jury on the lesser-included offenses of reckless homicide and involuntary manslaughter and on the defense of accident.

         {¶6} Appellee, the state of Ohio, filed a brief in opposition to appellant's motion to vacate void judgment, arguing appellant's arguments were barred by the doctrine of the law of the case. Appellee maintained appellant raised the same or similar issues in his prior Civ.R. 60(B)/Crim.R. 47 motion and that, on appeal, this court held his argument regarding failing to instruct the jury on the defense of accident was barred by res judicata. Appellant filed a reply to appellee's brief in opposition.

         {¶7} On October 14, 2016, the trial court denied appellant's motion to vacate void judgment filed August 25, 2016, finding appellant's arguments were barred by res judicata.

         {¶8} On November 7, 2016, appellant filed a timely notice of appeal from the trial court's October 14, 2016 judgment.

         {¶9} Appellant raises two assignments of error on appeal:

[1.] The Court erred as a matter of law, when it applied the Doctrine of Res judicata to a void judgment. Where it has been clearly shown that the trial court, during Appellant's criminal jury trial proceedings, acted in a manner wholly unauthorized by law, and thereby worked a manifest injustice, by blatantly disregarding the applicable rules of law - issued by, both, the Supreme Court of Ohio (State v. Loudermill,2 Ohio St.2d 79), and the Ohio General Assembly (O.R.C. § 2945.11) - when [it] totally refused to properly charge the jury on the law on any lesser included offense on murder; where the ...

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