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State v. Brown

Court of Appeals of Ohio, Fifth District, Stark

December 20, 2019

STATE OF OHIO Plaintiff-Appellee
v.
MARGARET REGINA BROWN Defendant-Appellant

          Criminal Appeal from the Canton Municipal Court, Case No. 2019CRB0316

         JUDGMENT: Affirmed

          For Plaintiff-Appellee KRISTEN BATES AYLWARD CANTON LAW DIRECTOR, JASON P. REESE, CANTON CITY PROSECUTOR BRITTANY M. FLETCHER ASSISTANT PROSECUTOR.

          For Defendant-Appellant BERNARD L. HUNT.

          JUDGES: Hon. John W. Wise P.J., Hon. Craig R. Baldwin J., Hon. Earle E. Wise, Jr., J.

          OPINION

          WISE, JOHN, P.J.

         {¶1} Appellant Margaret Regina Brown appeals her conviction, in the Canton Municipal Court, Stark County, on one count of misdemeanor domestic violence. Appellee is the State of Ohio. The relevant facts leading to this appeal are as follows.

         {¶2} Appellant and Daniel M. are the biological parents of a ten-year-old daughter (hereinafter "N.M."). On January 19, 2019, Daniel M. and N.M. stopped by appellant's residence in Pike Township, Ohio, in order to have her accompany them on a trip to Alliance to look at a puppy. After appellant got into the car, an argument developed between appellant and Daniel, purportedly concerning the volume of the music on the radio. Daniel decided to take appellant back to her residence. When they got there, appellant refused to exit the vehicle. A physical altercation ensued, and Daniel ended up with scratches on his face and abrasions on his chin.

         {¶3} Sergeant Gary Six of the Magnolia Police Department responded to the location in question after a neighbor called 911.

         {¶4} On January 21, 2019, appellant was charged by complaint in the Canton Municipal Court with one count of domestic violence (R.C. 2919.25(A)), a first-degree misdemeanor. On January 28, 2019, appellant posted bond and agreed to have no contact with the alleged victims.

         {¶5} The matter proceeded to a jury trial on March 6, 2019. Prior to voir dire, both sides filed motions in limine. In particular, the State sought to exclude testimony of "prior dealings" between Sergeant Six, appellant, and/or Daniel M. Tr. at 8. Defense counsel objected, asking the court not to "strictly rule" on the issue, arguing that the prior dealings might become relevant if the issue would go to credibility. The court essentially agreed. See Tr. at 9-10. Defense counsel subsequently asked to have Daniel M. referred to as the alleged or listed victim instead of "victim." The court agreed. Tr. at 23-24.

         {¶6} In addition, one of defense counsel's motions in limine concerned N.M., the daughter of appellant and Daniel M. First, defense counsel moved to exclude any testimony regarding appellant pushing or shoving N.M. based on lack of relevance. Tr. at 13. At that time, the court did not rule on the motion, implicitly giving trial counsel the opportunity to renew the motion during trial. See Tr. at 14. Defense counsel also moved to exclude any testimony regarding which parent had custody of N.M. based on lack of relevance. Tr. at 15. The court ruled that the question of which parent N.M. lived with on the day of the incident (i.e., Daniel) was relevant. Tr. at 16-17.

         {¶7} Following voir dire and opening arguments, the trial went forward, with the State calling four witnesses. The first was Sergeant Six. Among other things, Six stated that he had spoken to Daniel at the scene and was informed that after appellant was taken back to her apartment, she refused to get out of the car, and then started recording with her cell phone. Tr. at 126-127. Six then was informed that Daniel tried to grab the cell phone, at which point appellant "attacked" him, causing him to fall against another vehicle. Tr. at 127. Six agreed that at some point, appellant ended up on the ground in the fracas, but Six testified he had no evidence that Daniel had ended up on top of appellant. Tr. at 144. However, Six was shown Daniel's written statement where he had written that he was, eventually, on top of appellant. Tr. at 146. He also agreed that Daniel was listed as five inches taller than appellant, and more than thirty pounds heavier. Id.

         {¶8} N.M., the child witness, told the jury that appellant had "lunged" at Daniel, and that she saw him pinned down by appellant, near some standing water. Tr. at 169-170. She did not see Daniel ever hit appellant; instead, he just splashed water from the puddle at her face. Id. Daniel himself subsequently also testified that appellant had pinned him down, so he splashed some of the water in her face to get her away. Tr. at 180. A neighbor, Chas Smart, told the jury he had heard yelling outside of his apartment. After he went outside, he observed Daniel with blood "all over his face," and he proceeded to call 911. Tr. at 236-238.

         {¶9} The sole defense witness, Karl Gausewitz, appellant's landlord, recalled that Daniel told him he had slipped on the ice and snow, falling against Gausewitz's car, even though Sergeant Six had testified that Karl described appellant as the aggressor during the police investigation. Tr. at 127, 249, et seq.

         {¶10} After hearing the evidence and arguments, the jury found appellant guilty of domestic violence. On the same day, appellant was sentenced inter alia to 180 days in jail, with all but ten days suspended and with credit for ten days served. She was also fined $10.00 and ordered to pay court costs.

         {¶11} On April 3, 2019, appellant filed a notice of appeal. On April 17, 2019, the trial court granted a stay as to fines, costs, and other services pending appeal. Appellant herein raises the following three Assignments of Error:

         {¶12} "I. THE TRIAL COURT FAILED TO PROPERLY SWEAR IN THE JURY, TO THE PREJUDICE OF THE DEFENDANT.

         {¶13} "II. THE DEFENDANT WAS DENIED HER RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

         {¶14} "III. THE TRIAL COURT ERRED WHEN IT OVERRULED THE DEFENDANT'S EVIDENCE RULE 403(A) [MOTION] TO ...


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