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State v. Brazina

Court of Appeals of Ohio, Seventh District, Mahoning

August 30, 2017


         Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 14 CR 457

          For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney

          For Defendant-Appellant: Atty. Rhys B. Cartwright-Jones

          Hon. Carol Ann Robb Hon. Gene Donofrio Hon. Mary DeGenaro


          ROBB, P.J.

         {¶1} Defendant-Appellant appeals his conviction entered in Mahoning County Common Pleas Court for telecommunications harassment, impersonating a peace officer, and disrupting public services. Three issues are raised in this appeal. The first is whether there was sufficient evidence Appellant impersonated a peace officer. The second is whether trial counsel was ineffective for failing to stipulate to the prior telecommunication harassment convictions. The third is whether the trial court made the requisite consecutive sentence findings at the sentencing hearing. For the reasons discussed below, the verdicts are affirmed. However, the sentence is reversed and the matter remanded for a limited sentencing hearing because the trial court did not make the required consecutive sentence findings at the sentencing hearing.

         Statement of the Facts and Case

         {¶2} In January 2014, Appellant pled guilty to seven counts of telecommunication harassment. State's Exhibit 9 and 10. In March 2014, he was sentenced to community control for those convictions and released from the jail. State's Exhibit 10. During the pendency of that case, Appellant was being held in the Mahoning County Jail. Deputy Alicia Hawkins was one of the deputies supervising Appellant. During his stay in the Mahoning County Jail, Deputy Hawkins had to reprimand Appellant because she caught him masturbating. According to Appellant, he felt Deputy Hawkins treated him unfairly.

         {¶3} On April 8, 2014, while working at the jail, Deputy Hawkins received a telephone call on the jail's telephone line. The phone call was from a "Brian Myers" claiming to be a Struthers police officer and/or detective. Tr. 131-132. This person told Deputy Hawkins somebody called and complained about her, and he was investigating the complaint. Tr. 132. He asked to meet her on her lunch break. She explained she was not permitted to leave on her lunch break, but told him she would meet him at another time. Tr. 131-132. He indicated he would call back later to set a time to meet. Tr. 132-133. She testified she was scared she would lose her job. Tr. 132. She informed her supervisor about the call and wrote a report on the incident. Tr. 133-134.

         {¶4} "Brian Myers" called the jail again on April 22, 2014 and spoke to Deputy Hawkins. Tr. 135. During this telephone call they set a date and time to meet. Tr. 135. A meeting was arranged for the next day at the Plasma Center across from the jail. Tr. 136. Deputy Hawkins notified her supervisors of the call and wrote a report on the incident. Tr. 136. The Mahoning Valley Law Enforcement Task Force was notified and they provided surveillance for the meeting. Tr. 137, 165. "Brian Myers" did not show for the meeting. Tr.137, 165.

         {¶5} On May 14, 2014 Deputy Hawkins received another telephone call while working at the jail. This call was from "Kevin Bryant." Tr. 139. "Kevin Bryant" alleged to be from Trumbull County Administration or Trumbull County Sheriffs Office. Tr.139-140. He told Deputy Hawkins he was getting people together from other jails to talk about jail operations. Tr. 139. He told her he would call back the next day to give her the details of the meeting. Tr. 140. Deputy Hawkins recognized his voice as the same person claiming to be "Brian Myers." Tr. 139. She immediately advised her supervisors of the telephone call and wrote a report. Tr. 140.

         {¶6} The Task Force was called and Deputy Hawkins was given a recording device to record the next phone call she received from this individual. Tr. 141.

         {¶7} "Kevin Bryant" called the next day and Deputy Hawkins recorded the conversation. Tr. 142; State's Exhibit 11. He told her the meeting was going to take place the following morning at the old Alberini's in Niles and she was to wear dress clothes and heels. Tr. 142; State's Exhibit 11.

         {¶8} The Task Force accompanied Deputy Hawkins to the meeting. Tr. 146. No one appeared for the meeting.

         {¶9} Deputy Hawkins and the officers working on the case went back to the jail. Detective Anthony Murphy remembered another telecommunication harassment case, showed Deputy Hawkins a picture of Appellant, and asked if she knew him. Tr. 147. Deputy Hawkins stated she knew him and relayed the incident at the jail when she had to reprimand him. Tr. 148-149. She also listened to telephone calls he made from the jail. Tr. 150-151. She identified Appellant's voice as "Brian Myers" and "Kevin Bryant." Tr. 151.

         {¶10} Detective Murphy and Sergeant Larry McLaughlin called Appellant's probation officer and went to Appellant's house. Appellant agreed to cooperate and gave a statement. In his statement, Appellant explained he used a computer to make the phone calls and he did these things to "mess" with Deputy Hawkins because of how she treated him when he was in jail. State's Exhibit 12. During the conversation, Appellant admits to calling Deputy Hawkins only twice. However, in discussing the incidents he referenced the call about the Struthers investigation and asking her to meet him at the Plasma Center. State's Exhibit 12. He also talked about acting like he was somebody from Warren/Trumbull County Sheriff's Department and arranging a meeting at the old Alberini's in Niles. State's Exhibit 12.

         {¶11} As a result, Appellant was indicted for four counts of telecommunication harassment in violation of R.C. 2917.21(B)(C)(1)(2), fifth-degree felonies; four counts of impersonating a peace officer in violation of R.C. 2921.51(E)(G), third-degree felonies; and four counts of disrupting public services in violation of R.C. 2919.04(B)(C), fourth-degree felonies. 5/22/14 Indictment. The telecommunication harassment charges were elevated to fifth-degree felonies because of his prior telecommunication harassment convictions.

         {¶12} Appellant pled not guilty, filed a motion to suppress his confession and Deputy Hawkins' voice identification, and filed a motion in limine to prevent the state from referencing his prior telephone harassment convictions and similar unproven conduct. 9/3/14 Motion to Suppress; 5/18/15 Motion to Suppress Voice Identification; 9/14/15 Motion in Limine. The motions were overruled. 5/19/15 J.E.; 8/21/15 J.E.

         {¶13} The case proceeded to a jury trial. Appellant was found guilty on four counts of telephone harassment, four counts of impersonating a peace officer, and one count of ...

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