# Brown v. Warden, London Correctional Institution

> District Court, S.D. Ohio · October 2, 2024

URL: https://www.frixlaw.com/law-library/cases/10665478

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** October 2, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10665478

## How later opinions describe it (automated extraction)

- noting that there is sufficient evidence to support a conviction even if the "circumstantial evidence does not remove every reasonable hypothesis except that of guilt"
- holding that even if the only evidence was testimony of the victim, that is sufficient to support a conviction, even absent physical evidence or other corroboration
- holding that victim's testimony that habeas petitioner abducted her and raped her was constitutionally sufficient to sustain conviction despite lack of corroborating witness or physical evidence

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON

CHRISTOPHER D. BROWN,

Petitioner, : Case No. 3:23-cv-305

- vs - District Judge Michael J. Newman
Magistrate Judge Michael R. Merz

WARDEN, London Correctional
Institution,

:
Respondent.
REPORT AND RECOMMENDATIONS

This is a habeas corpus case brought pro se by Petitioner Christopher Brown under 28
U.S.C. § 2254. On Order of Magistrate Judge Caroline H. Gentry, the Respondent filed the State
Court Record (ECF No. 8) and a Return of Writ (ECF No. 9) and Petitioner has filed a Reply (ECF
No. 10), making the case ripe for decision. The Magistrate Judge reference in the case was recently
transferred to the undersigned to help balance the Magistrate Judge workload in this District (ECF
No. 11).

Litigation History

On April 29, 2022, a Montgomery County Grand Jury indicted Brown on one count of
robbery. A jury found Brown guilty as charged and he was sentenced to imprisonment for five to
seven and one-half years. Brown appealed to the Ohio Court of Appeals for the Second District
raising assignments of error that his conviction was not supported by sufficient evidence and was
against the manifest weight of the evidence. Both assignments were overruled and the conviction
affirmed. State v. Brown, 2023-Ohio-645 (Ohio App. 2nd Dist. Mar. 3, 2023). Although the Ohio
Supreme Court allowed Brown to file a delayed notice of appeal, it ultimately declined to exercise
jurisdiction. State v. Brown, 170 Ohio St.3d 1448 (2023).

Brown filed his Petition in this Court on October 5, 2023, the date he placed it in the prison
mailing system. He pleads one ground for relief:
GROUND ONE: The Appellant was denied the right to Due
Process and a Fair Trial in violation of the Fifth and Fourteenth
Amendments of the US. Constitution, and Art. I Section 10 of the
Ohio Constitution, when the conviction was not supported by
Sufficient Evidence.

(Petition, ECF No. 3, PageID 29).

Respondent raises no procedural defenses but claims the Second District’s decision is
entitled to deference under the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No
104-132, 110 Stat. 1214)(the "AEDPA"). When a state court decides on the merits a federal
constitutional claim later presented to a federal habeas court, the federal court must defer to the
state court decision unless that decision is contrary to or an objectively unreasonable application
of clearly established precedent of the United States Supreme Court. 28 U.S.C. § 2254(d)(1);
Harrington v. Richter, 562 U.S. 86 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v.
Cone, 535 U.S. 685, 693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000);	Hendrix
v.	Palmer, 893 F.3d 906, 917 (6th Cir. 2018). Deference is also due under 28 U.S.C. § 2254(d)(2)
unless the state court decision was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceedings.
An allegation that a verdict was entered upon insufficient evidence states a claim under the
Due Process Clause of the Fourteenth Amendment to the United States Constitution. Jackson v.
Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle, 200 F.3d
987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990)(en banc). In order
for a conviction to be constitutionally sound, every element of the crime must be proved beyond a
reasonable doubt. In re Winship, 397 U.S. at 364.

[T]he relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt . . . . This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence and to draw reasonable inferences
from basic facts to ultimate facts.

Jackson v. Virginia, 443 U.S. at 319; Smith v. Nagy, 962 F.3d 192, 205 (6th Cir. 2020) (quoting
Jackson). This standard “must be applied with explicit reference to the substantive elements of the
criminal offense as defined by state law.” Id. (quoting Jackson, 443 U.S. at 324). This rule was
recognized in Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of course, it is state law
which determines the elements of offenses; but once the state has adopted the elements, it must
then prove each of them beyond a reasonable doubt. In re Winship, supra. A sufficiency challenge
should be assessed against the elements of the crime, not against the elements set forth in an
erroneous jury instruction. Musacchio v. United States, 577 U.S. 237 (2016).
In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after
enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110
Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required:
In an appeal from a denial of habeas relief, in which a petitioner
challenges the constitutional sufficiency of the evidence used to
convict him, we are thus bound by two layers of deference to groups
who might view facts differently than we would. First, as in all
sufficiency-of-the-evidence challenges, we must determine
whether, viewing the trial testimony and exhibits in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.
See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.
Ed. 2d 560 (1979). In doing so, we do not reweigh the evidence, re-
evaluate the credibility of witnesses, or substitute our judgment for
that of the jury. See United States v. Hilliard, 11 F.3d 618, 620 (6th
Cir. 1993). Thus, even though we might have not voted to convict a
defendant had we participated in jury deliberations, we must uphold
the jury verdict if any rational trier of fact could have found the
defendant guilty after resolving all disputes in favor of the
prosecution. Second, even were we to conclude that a rational trier
of fact could not have found a petitioner guilty beyond a reasonable
doubt, on habeas review, we must still defer to the state appellate
court's sufficiency determination as long as it is not unreasonable.
See 28 U.S.C. § 2254(d)(2).

Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas corpus
case, deference should be given to the trier-of-fact's verdict under Jackson v. Virginia and then to
the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v. Palmer,
541 F.3d 652 (6th Cir. 2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)(en banc);
Parker v. Matthews, 567 U.S. 37, 43 (2012). Notably, “a court may sustain a conviction based
upon nothing more than circumstantial evidence.” Stewart v. Wolfenbarger, 595 F.3d 647, 656
(6th Cir. 2010).
We have made clear that Jackson claims face a high bar in federal
habeas proceedings because they are subject to two layers of judicial
deference. First, on direct appeal, "it is the responsibility of the jury
-- not the court -- to decide what conclusions should be drawn from
evidence admitted at trial. A reviewing court may set aside the jury's
verdict on the ground of insufficient evidence only if no rational trier
of fact could have agreed with the jury." Cavazos v. Smith, 565 U.
S. 1, ___, 132 S. Ct. 2, 181 L. Ed. 2d 311, 313 (2011) (per curiam).
And second, on habeas review, "a federal court may not overturn a
state court decision rejecting a sufficiency of the evidence challenge
simply because the federal court disagrees with the state court. The
federal court instead may do so only if the state court decision was
'objectively unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U. S.
___, ___, 130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)).

Coleman v. Johnson, 566 U.S. 650, 651, (2012)(per curiam); Parker v. Matthews, 567 U.S. 37, 43
(2012) (per curiam). The federal courts do not make credibility determinations in reviewing
sufficiency of the evidence claims. Brooks v. Tennessee, 626 F.3d 878, 887 (6th Cir. 2010).
In deciding this case, the Second District Court of Appeals applied the correct Jackson v.
Virginia standard as it has been adopted in Ohio law in State v. Jenks, 61 Ohio St. 3d 259 (1991).
It held

{¶ 2} In April 2022, Amber Kilgore and her fiancé Michael Santana
were residing in a homeless shelter located on Apple Street in
Dayton. During the late night and early morning hours of April 7
and 8, 2022, Kilgore and Santana left the shelter and walked to visit
two friends who were living in an abandoned parking garage in
downtown Dayton. Upon arriving at the garage, Kilgore and
Santana walked up a ramp to the sixth floor, where their friends were
camped. The foursome played cards and listened to music. Later,
Kilgore and Santana got into an argument and walked to the ground
floor of the garage. Santana, who had possession of Kilgore's cell
phone, left and walked down the street. Kilgore waited
approximately 20 minutes before she walked back up the ramp to
her friends’ camp. Kilgore called out to her friends but received no
response. Believing her friends to be asleep, Kilgore began walking
back down the ramp.

{¶ 3} When Kilgore reached the third floor of the garage, she noted
a man holding a coffee cup. The man, using a “commanding” or
“threatening” tone, told her to “come over here.” Tr. p. 127. The
man told Kilgore that he “owned” the garage, that she was
“disrespectful,” and that he would “teach [her] a lesson.” Id. Kilgore
continued to walk down the ramp, and the man started walking
beside her. During the walk, he continued to call her disrespectful.

{¶ 4} Once the pair reached the ground floor, the man ordered
Kilgore to go into the garage ticket booth. Kilgore tried to walk
around the man, but he blocked her from exiting the garage. The
man then grabbed Kilgore's purse and began hitting her about the
head. Eventually, Kilgore fell to the floor, and the man began to kick
her while still trying to pull the purse away. Finally, the man gave a
hard tug and Kilgore released the purse. The man stumbled
backward, and Kilgore fled the garage.

{¶ 5} Kilgore ran back to the homeless shelter and banged on the
glass door, seeking entry. A security guard, Chris Schwieterman,
unlocked the door and admitted Kilgore into the building.
Schwieterman, who stated that Kilgore looked frantic and scared,
escorted her into an office where she related the attack to him.
Kilgore then used the office phone to call Santana, who advised her
to call the police. Kilgore then called the police and reported the
attack.

{¶ 6} In the meantime, Schwieterman contacted another security
officer and related information about the attack and a description of
the suspect. The officer, Nicholas Reed, was on patrol at the time.
Reed traveled to the parking garage, where he observed an
individual matching the description relayed to him by
Schwieterman. Reed drove his vehicle ahead of the man and pulled
to the side of the road. He then observed the man brandish an item
that appeared to be a gun. The man looked at Reed and asked, “what
the f**k are you going to do?” Reed then drove around the corner,
where he spotted two Dayton Police Department Officers. Reed
informed the officers of his interaction with the suspect and
requested the officers accompany him to the garage.

{¶ 7} Around the same time, Santana flagged down Dayton Police
Department patrol officer Joshua Blankley. Santana stated that he
had made an emergency call regarding an attack involving his
fiancée. While Blankley was speaking with Santana, he overheard a
radio dispatch concerning an armed suspect located at the
abandoned garage.

{¶ 8} Blankley then met the other two officers and Reed at the
garage. The group observed a light turn off in the ticket booth. The
officers eventually removed a man, later identified as Brown, from
the booth. The officers recovered Kilgore's purse which still
contained her identification. The officers also discovered a metal
barbell which Brown stated he carried for protection.

* * * * * *

{¶ 15} At trial, Kilgore testified to the events set forth above.
Specifically, she testified Brown hit her repeatedly while pulling her
purse away from her. Kilgore further testified that she suffered cuts
and bruises from the attack and that she had to go to the hospital
because she experienced severe pain in her rib area. Finally, Kilgore
made an in-court identification of Brown as her assailant.

{¶ 16} Kilgore's testimony, which was believed by the jury, was
sufficient to sustain the conviction. Additionally, the evidence
demonstrated that Brown was located by officers in the ticket booth
of the abandoned garage where Kilgore's purse was subsequently
found. Based upon this record, we conclude the State presented
competent, credible evidence upon which a reasonable juror could
rely in finding the elements of the offense were proven.

{¶ 17} Further, the jury was made aware of the differing descriptions
of the hat worn by the offender. We cannot say that the testimony of
any of the witnesses was rendered inherently incredible because of
the differing descriptions.

{¶ 18} “ ‘[T]he trier of fact is better situated than an appellate court
to view witnesses and to observe their demeanor, gestures, voice
inflections and to use those observations in weighing credibility.’ ”
State v. Jackson, 2015-Ohio-5490, 63 N.E.3d 410, ¶ 50 (2d Dist.),
citing State v. Lewis, 4th Dist. Scioto No. 01CA2787, 2002 WL
368625 (Feb. 25, 2002). Thus, we must give substantial deference
to the jury, which had the opportunity to see and hear the witnesses.

State v. Brown, supra.

In his Traverse, Brown argues forcefully that these are not the true facts of the incident.
The Response listed in [P2], that Kilgore and Santana went to the
Parking Garage to play cards with friends that were camped there.
Further stating that they walked to the sixth floor, via the ramp. The
alleged victim failed to state and counsel failed to challenge the
facts. This area is only used for drug use and homeless people.
There were no lights or table and chairs. It is not plausible that they
went there to play cards. The garage usually has about 8-10 people
on each level. There were no tents or enclosed structures on the
floors. She left because her and Santana were arguing and he took
off with her phone. Further there was no electricity for plugging in
a radio. However, they could have been listening to music through
the phone.

The Respondent fails to include the fact that Brown was a keeper of
the property, at the request of the owner. Kilgore’s friends on the
sixth level were dealing drugs and Kilgore and Santana only came
there for drugs. Brown was there to clean and reduce the drug traffic.
Kilgore was roaming around when Brown confronted her. She was
looking to score more drugs, mad at Santana, she sought the
company of Brown, who she knew through her friend upstairs. They
originally met on March 8, 2022. Brown only spoke to her because
she was roaming around. It is not disputed that Brown gave her
refuge in the office (ticket booth) on the ground level, because it was
cold and Brown had a heater. The facts are in disputed [sic] between
Kilgore and Brown. Kilgore was sitting in the booth with Brown
when she heard the voice of Santana calling her name. It was at that
point that she jetted out of the booth. Brown believes that she met
up with Santana, started walking back to the shelter, when she
realized that she left her purse. In an attempt to not further upset
Santana, Kilgore made up the attack story. She returned to the
shelter.

(Traverse, ECF No. 10, PageID 595-96).

Several observations about these recited facts are critical. First of all, Brown gives no
record citation for any of them, although he has been furnished with a copy of the trial transcripts
with PageID numbers and all parties were directed to make record references with those citations
(See Order for Answer, ECF No. 4, PageID 42).
Much more importantly, these factual statements are made by Brown as of his own personal
knowledge, but he did not testify, nor did the defense present any witnesses (Transcript, ECF No.
8-1, PageID 143). Even if Brown put all his statements of fact into an affidavit, the Court could
not consider it. A habeas corpus court is limited to the record which was before the state courts
when they decided the case. Cullen v. Pinholster, 563 U.S. 170 (2011); Shinn v. Ramirez, 596
U.S. 366 (2022).
Brown blames the jury’s reliance on Kilgore’s testimony on ineffective assistance of trial
counsel. However, he never raised a claim of ineffective assistance of trial counsel in the Ohio
courts and indeed has not pleaded one in his Petition.
As Respondent points out, the testimony of the victim alone is sufficient for conviction.
The Sixth Circuit has long held that the testimony of the victim alone is constitutionally sufficient
to sustain a conviction. Tucker v. Palmer, 541 F.3d 652 (6th Cir. 2008), citing United States v.
Terry, 362 F.2d 914, 916 (6th Cir. 1966) ("The testimony of the prosecuting witness, if believed
by the jury, is sufficient to support a verdict of guilty."); see also O'Hara v. Brigano, 499 F.3d 492,
500 (6th Cir. 2007) (holding that victim's testimony that habeas petitioner abducted her and raped
her was constitutionally sufficient to sustain conviction despite lack of corroborating witness or
physical evidence); United States v. Howard, 218 F.3d 556, 565 (6th Cir. 2000) (holding that even
if the only evidence was testimony of the victim, that is sufficient to support a conviction, even
absent physical evidence or other corroboration); United States v. Jones, 102 F.3d 804, 807 (6th

Cir. 1996) (noting that there is sufficient evidence to support a conviction even if the
"circumstantial evidence does not remove every reasonable hypothesis except that of guilt")
(internal quotation marks omitted).
It is the jury’s responsibility to resolve inconsistencies in a victim’s testimony. The jury
in this case resolved those inconsistencies in favor of a guilty verdict. Had Brown testified, it
would also have been the jury’s responsibility to resolve inconsistencies between his and Kilgore’s
stories. But he never gave the jury his own story to work with.

Conclusion

Based on the foregoing analysis, the Magistrate Judge respectfully recommends that the
Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this
conclusion, it is also recommended that Petitioner be denied a certificate of appealability and that
the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should not
be permitted to proceed in forma pauperis.
October 2, 2024.
s/ Michael R. Merz
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is recetved. Such
objections shall specify the portions of the Report objected to and shall be accompanied by a
memorandum of law in support of the objections. A party may respond to another party’s
objections within fourteen days after being served with a copy thereof. Failure to make objections
in accordance with this procedure may forfeit rights on appeal. #

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10665478. Public record. Not legal advice.