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State v. Brown

Court of Appeals of Ohio, Second District, Montgomery

August 3, 2018

STATE OF OHIO Plaintiff-Appellee
ANTHONY J. BROWN Defendant-Appellant

          Criminal Appeal from Common Pleas Trial Court Case No. 2017-CR-1677

          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


          WELBAUM, P.J.

         {¶ 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 be affirmed.

         Facts 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 neck." Id.

         {¶ 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 orthopedic specialist.

         {¶ 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 No. 17.

         {¶ 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 in self-defense.

         {¶ 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 ...

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