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State v. Brown

Court of Appeals of Ohio, Fifth District

December 20, 2017

State of Ohio, Plaintiff-Appellee,
v.
Michael T. Brown, Jr., Defendant-Appellant.

         APPEAL from the Stark County Court of Common Pleas C.P.C. No. 13CR-0203

         On brief:

          John D. Ferrero, Prosecuting Attorney, and Renee M. Watson, for appellee.

          The Law Offices of Cleveland, and W. Scott Ramsey, for appellant.

          DECISION

          LUPER SCHUSTER, J.

         {¶ 1} Defendant-appellant, Michael T. Brown, Jr., appeals from an order of the Stark County Court of Common Pleas denying his motion for new trial. For the following reasons, we affirm.

         I. Facts and Procedural History

         {¶ 2} By indictment filed February 12, 2013, plaintiff-appellee, State of Ohio, charged Brown with five counts of rape in violation of R.C. 2907.02(A)(1)(b), felonies of the first degree; three counts of gross sexual imposition in violation of R.C. 2907.05(A)(4), felonies of the third degree; one count of unlawful sexual conduct with a minor in violation of R.C. 2907.04, a felony of the third degree; and one count of sexual imposition in violation of R.C. 2907.06(A)(4), a misdemeanor of the third degree. The victims were six juvenile family members. Following atrial, a jury found Brown guilty of all ten counts. The trial court sentenced Brown to an aggregate prison term of 75 years to life, journalizing his conviction and sentence in a July 26, 2013 judgment entry.

         {¶ 3} Brown appealed his conviction and sentence to this court, challenging the sufficiency of the evidence, the imposition of consecutive sentences, and alleging he received ineffective assistance of counsel. This court sustained Brown's assignment of error related to the sufficiency of the evidence, vacating one of Brown's rape convictions, and remanded the case for resentencing. Stare v. Brown, 5th Dist. No. 2013CA00167, 2014-Ohio-2744.

         {¶ 4} On remand, in a September 8, 2014 judgment entry, the trial court imposed an aggregate prison term of 60 years to life imprisonment. Brown filed a pro se appeal from the resentencing entry, but this court ultimately dismissed the matter for failure to prosecute. Stare v. Brown, 5th Dist. No, 2014CA00183 (Nov. 7, 2014) (judgment entry).

         {¶ 5} More than two years later, on October 11, 2016, Brown filed a motion for leave to file a motion for new trial instanter. Brown claimed in the motion that he had newly discovered evidence, pursuant to Crim.R. 33(A), that he had been unavoidably prevented from discovering at the time of his trial. The alleged newly discovered evidence was the affidavit of Jennifer Akers, Brown's friend. Akers averred she knew all the children involved, as well as Brown's ex-girlfriend and his ex-girlfriend's mother. Akers asserted she had witnessed Brown's ex-girlfriend stating she was going to get Brown in trouble in retaliation for him ending their relationship. Further, she averred she had overheard Brown's ex-girlfriend and her mother coaching the children on how to lie "both in and out of court" about Brown's conduct. (Akers Aff. at ¶ 5.)

         {¶ 6} The trial court conducted a hearing on Brown's motion on November 28, 2016. At the hearing, Alters testified she met Brown, his girlfriend Bobbi Rae Butler, and Bobbi Rae's mother, Nadine Butler, through her boyfriend's family. Akers said that Bobbi Rae once told her she was "going to get [Brown] in trouble" if he ended their relationship. (Tr. at 9O On another occasion, Akers said she was at Nadine's house and she overheard Nadine "trying to teach the kids * * * to basically say that [Brown] touched them." (Tr. at 10.) Alters testified that the children were in the kitchen with Nadine and Akers was in another room during this conversation. Akers said she never told anyone about overhearing that conversation because she "didn't really think that it was anything serious." [Tr. at 12.)

         {¶ 7} Upon further questioning, Akers testified she heard Bobbi Rae and Nadine talk to two of the children, but she admitted she "didn't hear exactly what Nadine said" and only Irheard a little bit of what Bobbi Rae said." (Tr. at 24.) Akers said she overheard Bobbi Rae and Nadine telling "K" to say that Brown had touched her and that they then told "M" to say the same thing.

         {¶ 8} When asked why she had kept this information to herself until now, Akers said she had been taking care of her ill father in Canton, Ohio, every day during 2012 and 2013. Akers said she never left the house during that time except to go to doctor appointments, she had no contact with friends, had no cell phone, no house phone, and no ...


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