Court of Appeals of Ohio, Second District, Montgomery
Criminal Appeal from Common Pleas Trial Court Case No.
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Assistant
Prosecuting Attorney, Montgomery County Prosecutor's
Office, Appellate Division, Montgomery County Courts
Building, Attorney for Plaintiff-Appellee
CHARLES W. SLICER, III, Attorney for Defendant-Appellant
1} Defendant-appellant, Anthony J. Brown, appeals
from his conviction in the Montgomery County Court of Common
Pleas after a jury found him guilty of felonious assault,
domestic violence, and kidnapping. In support of his appeal,
Brown claims his felonious assault conviction was not
supported by sufficient evidence and was against the manifest
weight of the evidence. Brown also contends that the trial
court erred in failing to instruct the jury on aggravated
assault as an alternative to felonious assault. For the
reasons outlined below, the judgment of the trial court will
and Course of Proceedings
2} On June 8, 2017, the Montgomery County Grand Jury
returned a two-count indictment charging Brown with felonious
assault in violation of R.C. 2903.11(A)(1) and domestic
violence in violation of R.C. 2919.25(A). Approximately two
months later, on August 18, 2017, the State issued a
re-indictment that added one count of kidnapping in violation
of R.C. 2905.01(A)(2). The charges stemmed from a domestic
dispute that occurred between Brown and his girlfriend, A.W.
3} Brown pled not guilty to the indicted charges and
the matter proceeded to a jury trial. A.W. and Brown both
testified at trial and explained that they had become
romantically involved in November 2016. Shortly after the
couple met, Brown began living with A.W. at her residence in
Huber Heights, Ohio. The couple dated for six months until
they broke up over Mother's Day weekend in May of 2017.
After the breakup, Brown left A.W.'s residence and went
to live with his mother. Two weeks later, A.W. and Brown
began communicating via text message and decided to meet over
Memorial Day weekend. This meeting resulted in Brown and A.W.
rekindling their relationship, as Brown spent the night at
A.W.'s residence on Saturday May 27, 2017.
4} After spending Saturday night together, A.W. and
Brown made plans to see each other on Sunday evening after
Brown got off work. Once Brown was finished working, A.W.
picked up Brown in her truck and drove him to her residence
where they worked on a home improvement project, had dinner,
and played cards. During that time, A.W. testified that
things between her and Brown began to get tense. A.W.
testified that Brown started to question her about a concert
she attended with another man while she and Brown were broken
up. A.W. testified that she and Brown got into a verbal
argument when Brown accused her of having sex with the man
from the concert. A.W. claimed that she denied Brown's
accusation, but that Brown nevertheless called her a
"cheating whore" and repeatedly asked if she and
the man from the concert had sex. Tr. at 127.
5} At that point in time, A.W. claimed that she was
becoming concerned with Brown's behavior. A.W. testified
that she attempted to call Brown's mother in an effort to
calm him down. The State admitted a call log showing an
attempted outgoing call from A.W.'s cell phone to
Brown's mother at 9:57 p.m. See State's
Exhibit No. 14. After attempting to call Brown's mother,
A.W. testified that Brown got angry and continued asking her
if she had sex with the man from the concert. During this
time, A.W. testified that Brown "changed his face and
his body language and got this crazy look in his eyes."
Tr. at 127.
6} Continuing, A.W. testified that she eventually
admitted to having oral sex with the man from the concert,
and that Brown "lost it" and "got
physical." Tr. at 128. Specifically, A.W. testified that
Brown pushed her and grabbed her cell phone, over which they
began to physically fight. Scared by the physical nature of
the argument, A.W. testified that she attempted to run out
the front door of her house. Upon doing so, A.W. testified
that she fell down on her knees and hit her face on the
concrete. A.W. testified that Brown then came outside after
her, pulled her back inside the house by her arm, and locked
the door. A.W. also testified that she screamed for help as
Brown pulled her back inside the house.
7} Once the pair was back inside A.W.'s house,
A.W. testified that she ran into the master bathroom where
she attempted to treat her wounds from falling. According to
A.W., Brown followed her to the bathroom and smacked
Band-Aids, peroxide, and cotton balls out of her hands. A.W.
testified that Brown then started yelling vulgar things at
her and once again called her a "cheating whore."
Tr. at 128-129. A.W. testified that Brown then pushed her
onto her bedroom floor and began to smash her face in the
carpet to the extent that she had difficulty breathing.
8} After Brown smashed her face in the carpet, A.W.
testified that Brown made her get onto the bed and told her
to "[j]ust lay here and be quiet." Tr. at 129. A.W.
then claimed that Brown said he wanted to get out of the
house and told her "[y]ou need to drive me home."
Id. A.W., however, told Brown that she could not
drive because she had been drinking, but offered to call him
a cab instead. A.W. testified that Brown let her call a few
cab companies from the living room, but that he threatened
"[d]on't you be calling anybody for help. * * * If
you make one wrong move, I'm going to snap your
9} Although she called several cab companies, A.W.
testified that she was unable to get a cab to pick up Brown
because it was a holiday weekend. When she could not get a
cab, A.W. claimed that Brown grabbed her phone and her purse
and began to fight with her again. During this fight, A.W.
recalled Brown swinging her around by her purse, pushing her
onto the living-room floor, and getting on top of her. A.W.
testified that she flipped around in an attempt to defend
herself and tried to push and kick Brown off her, but Brown
was too strong.
10} A.W. further testified that her arm began
hurting sometime between fighting Brown in the bedroom and
the living room. Upon noticing the pain in her arm, A.W.
claimed that she told Brown her arm was hurt, and that Brown
responded by saying he did not care. After she pled with
Brown to let her go, A.W. recalled Brown saying:
"You're not leaving this house alive tonight. * * *
I'm going to kill you." Tr. at 135. According to
A.W., Brown then stated: "If I kill you though, I'm
going to be the prime suspect. * * * I'm going to have to
kill you and then I'll have to kill me. * * * You just
lay there while I figure it out." Id.
11} Desperate to escape the situation, A.W.
testified that she agreed to drive Brown to his mother's
house despite being intoxicated. A.W. claimed that Brown
followed her closely as she walked to her truck and that when
she sat in the driver's seat, Brown climbed over her to
get to the passenger side so she could not leave without him.
As A.W. drove Brown to his mother's house, she recalled
Brown threatening to "snap [her] neck" if she got
pulled over by the police. Tr. at 138.
12} Once they arrived at Brown's mother's
house, A.W. testified that Brown once again called her a
"cheating whore" and poured a bottle of Mountain
Dew on her. Tr. at 139. A.W. then claimed that as Brown was
standing by her truck, he attempted to grab the keys from the
ignition. A.W., however, was able to push Brown away and
drive off. After driving away, A.W. testified that she used
her cell phone to call her best friend, Emily Carter, who did
not answer. A.W. then tried to call Brown's mother to
tell her that Brown was "acting crazy."
Id. When Brown's mother did not answer, A.W.
called Carter's boyfriend, Brian Forinash. Forinash
answered A.W.'s call, which led to A.W. speaking with
Carter. The State presented a call log from A.W.'s cell
phone indicating that A.W. had made outgoing calls to Carter,
Forinash, and Brown's mother between 1:03 a.m. and 1:06
a.m. on the morning in question. See State's
Exhibit No. 15.
13} After telling Forinash and Carter what had
happened with Brown, A.W. went to their house in Riverside,
Ohio, where Forinash called 9-1-1 to report the incident. The
responding Riverside officer, Nick Toscani, testified that
when he observed A.W. she was very upset, crying, and holding
her arm up while sitting at a table. Both Forinash and Carter
testified that A.W. appeared to have been beaten up when she
arrived at their house. Forinash and Carter also testified
that A.W.'s arm was in bad condition and that she was
bleeding with bruises all over her body. The State admitted
an audio recording of Forinash's 9-1-1 call and
body-camera footage from Officer Toscani, which depicted A.W.
crying and upset over the altercation with Brown. Due to the
positioning of Officer Toscani's camera, A.W.'s
injuries were not visible on the body-camera footage.
14} After speaking with Officer Toscani, A.W. was
taken by ambulance to the Grandview Hospital emergency room
where she was treated by Dr. Sara Simpson. Dr. Simpson
testified that A.W. had abrasions on her left knee and
significant bruising around her left wrist and arm. Dr.
Simpson also testified that an x-ray of A.W.'s left arm
revealed a non-displaced fracture of the radius. Dr. Simpson
further diagnosed A.W. with an "occult" wrist
fracture, meaning the wrist fracture did not show up on the
x-ray, but was nevertheless apparent from A.W.'s physical
exam. Dr. Simpson testified that she treated A.W.'s
broken wrist with a splint and her broken arm with a sling.
Dr. Simpson further testified that she prescribed ibuprofen
for A.W.'s pain and ordered A.W. to follow up with an
15} Prior to receiving any medical treatment at the
hospital, A.W. met with Officer Scott Short of the Huber
Heights Police Department. Officer Short testified that he
took pictures of A.W.'s injuries and spoke with A.W.
regarding her injuries. In addition to the photographs taken
by Officer Short, A.W.'s family took several photographs
of her injuries later the same morning. A.W.'s father
testified that A.W. appeared beaten up and upset when she
came to his house following her release from the hospital.
Her father also testified that when he and A.W. went to
A.W.'s house later the same day, he noticed her home was
trashed and that there were clumps of long hair on the
kitchen and living room floor.
16} In addition, A.W. testified that she had
received some text messages from Brown after the altercation.
At trial, the State presented a screen shot of the text
messages. The screen shots indicated that, at 1:08 a.m.,
Brown texted A.W.: "What the Fuck do you want?" Ten
minutes later, Brown texted A.W.: "Don't ever tell
me you sucked a dick…dumbass." Then at 8:11 a.m.
Brown texted A.W.: "Really you called the cops on my
mom's birthday." See State's Exhibit
17} Brown testified in his defense and claimed that
his actions towards A.W. were in self-defense. Specifically,
Brown testified that, after A.W. admitted to having oral sex
with the man from the concert, he stood up and said "you
know, it would only take you a week to find another guy like
that to already have sex with[.]" Tr. at 271. Afterward,
Brown claimed that he told A.W. "I'm leaving"
and then tried to leave the residence. Id. However,
according to Brown, when he walked from the living room to
the front door to put on his shoes, A.W. came from the
kitchen screaming "you're f-ing not taking my
truck." Tr. at 273. Brown then recalled A.W. pushing him
and grabbing his upper body. Brown claimed that A.W. got more
and more aggressive and that A.W. had him by the ear and was
pulling him backward.
18} Continuing, Brown testified that he had to take
A.W.'s arms and push her to the side so that he could put
on his shoes. Brown claimed that A.W. then got down on the
ground and grabbed him around the legs to prevent him from
leaving. In order to free himself, Brown testified that he
took the top of A.W.'s shoulder and pushed and pulled his
feet from her grasp. As he continued to try to put on his
shoes, Brown claimed that A.W. once again grabbed him by the
legs. Brown then claimed that A.W. picked up the keys to her
truck and pounded them into his right foot. In response,
Brown testified that he reached down, grabbed A.W. by the
arm, and twisted her off him using force. Brown claimed that
he felt it was necessary to use force to remove A.W. since
she stabbed him with her keys, and that he was simply acting
19} Contrary to A.W.'s testimony, Brown claimed
that he did not force A.W. to give him a ride home, but that
he left A.W.'s house on his own volition and began to
walk home. Brown testified that, after walking for 30
minutes, he reached a nearby Kroger where A.W. showed up in
her truck. Brown testified that A.W. offered him a ride to
his mother's house, which he accepted. When they reached
his mother's house, Brown claimed that he got out of the
truck and began walking away when he noticed A.W. attempting
to park. Upon seeing this, Brown testified that he walked
back to the truck and told A.W. he did not want her there.
Brown then admitted to calling A.W. an inappropriate name and
dumping Mountain Dew on her. Thereafter, A.W. left, and Brown
was arrested two days later.
20} Although he claimed his foot was injured by A.W.
stabbing him with her keys, Brown testified that he did not
seek medical treatment for his foot until he was booked into
jail. Brown, however, did not present any evidence confirming
that he received medical treatment while in jail. Brown only
presented a photograph of a mark on his foot that he claimed
was caused by A.W. stabbing him with her keys. The photograph
was taken by Brown's attorney approximately three months
after the altercation with A.W.
21} At the close of trial, Brown requested a jury
instruction on misdemeanor assault as a lesser-included
offense of felonious assault. Brown also requested a jury
instruction on self-defense. The trial court gave an
instruction on self-defense but declined to give an
instruction on misdemeanor assault. Following deliberations,
the jury returned a verdict finding Brown guilty of all the
indicted charges. The trial court then sentenced Brown to a
prison term of three years for felonious ...