Court of Appeals of Ohio, Eleventh District, Trumbull
Appeal from the Trumbull County Court of Common Pleas. Case
No. 1995 CR 00127.
Watkins, Trumbull County Prosecutor, and LuWayne Annos,
Assistant Prosecutor, Administration Building, Fourth Floor,
O. Brown, Jr., pro se, (Defendant-Appellant).
TIMOTHY P. CANNON, J.
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.
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).
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.
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.
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.
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.
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.
On November 7, 2016, appellant filed a timely notice of
appeal from the trial court's October 14, 2016 judgment.
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