The opinion
[Cite as State v. Brown, 2023-Ohio-2917.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
CASE NO. 1-22-55
PLAINTIFF-APPELLEE,
v.
MATTHEW L. BROWN, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR2022 0030
Judgment Affirmed in Part, Reversed in Part
Date of Decision: August 21, 2023
APPEARANCES:
William T. Cramer for Appellant
John R. Willamowski, Jr. for Appellee
Case No. 1-22-55
POWELL, J.
{¶1} Defendant-appellant Matthew L. Brown (“Brown”) brings this appeal
from the judgment of the Court of Common Pleas of Allen County convicting him
of multiple felonies and sentencing him to an aggregate prison term 150 years to
life. On appeal Brown challenges 1) the admission of improper testimony; 2) the
imposition of mandatory prison terms; and 3) that he was denied the effective
assistance of counsel. For the reasons set forth below, the judgment is affirmed in
part and reversed in part.
Background
{¶2} Brown was married to a woman (“B.B”) who had a child (“the Victim”)
from a prior relationship. The Victim was born in 2007, and Brown began his
relationship with B.B. in 2012. After the marriage ended, Brown would visit his
biological children with B.B., but the Victim would not interact with him anymore.
{¶3} In 2022, Brown’s niece contacted B.B. through Facebook and
expressed her concerns that the Victim was displaying signs that he had been
sexually abused. Following this, B.B. and the Victim’s grandmother spoke with the
Victim and asked him if anyone had touched him inappropriately. The Victim
denied it, but later messaged B.B. and admitted to being abused. B.B. and the
Victim’s grandmother spoke with the Victim again, and the Victim’s grandfather
contacted the police. B.B. then contacted Brown and asked him about what had
happened. Brown apologized and stated that he was sick.
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{¶4} On March 17, 2022, the Allen County Grand Jury indicted Brown on
five Counts: 1) Sexual Battery in violation of R.C. 2907.03(A)(5), 2907.03(B), a
felony of the second degree; 2) Sexual Battery in violation of R.C. 2907.03(A)(5),
2907.03(B), a felony of the second degree; 3) Gross Sexual Imposition in violation
of R.C. 2907.05(A)(4), 2907(C)(2), a felony of the third degree; 4) Gross Sexual
Imposition in violation of R.C. 2907.05(A)(4), 2907(C)(2), a felony of the third
degree; and 5) Importuning in violation of R.C. 2907.07(A), 2907.07(F)(2), a felony
of the third degree. Brown entered a written plea of not guilty to all counts. On
June 16, 2022, the Allen County Grand Jury issued a superseding indictment
consisting of 19 Counts: nine counts of Rape in violation of R.C. 2907.02(A)(1)(b),
felonies of the first degree; seven counts of Sexual Battery in violation of R.C.
2907.03(A)(5), felonies of the second degree; two counts of Gross Sexual
Imposition in violation of R.C. 2907.05(A)(4), felonies of the third degree; and one
count of attempted rape in violation of 2923.02/2907.02(A)(2), a felony of the
second degree. Brown entered pleas of not guilty to all counts.
{¶5} A jury trial was held from July 19-21, 2022. The jury returned verdicts
of guilty as to all nineteen counts in the superseding indictment. The trial court
accepted the verdicts and continued the matter for sentencing. A sentencing hearing
was held on August 29, 2022.
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Count Offense Sentence
1 Rape 10 years to life – mandatory
2 Sexual battery Merged with count 1
3 Gross sexual imposition 60 months – mandatory
4 Rape with force 25 years to life - mandatory
5 Sexual battery Merged with count 4
6 Gross sexual imposition 60 months – mandatory
7 Rape with force 25 years to life - mandatory
8 Rape Merged with count 7
9 Sexual battery Merged with count 7
10 Rape with force 25 years to life – mandatory
11 Sexual battery Merged with count 10
12 Rape with force 25 years to life – mandatory
13 Rape Merged with count 12
14 Sexual battery Merged with count 12
15 Rape 11 years to 16.5 years – mandatory
16 Sexual battery Merged with count 15
17 Rape 11 years to 16.5 years – mandatory
18 Sexual battery Merged with count 17
19 Attempted rape 8 years to 12 years
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The trial court also ordered that the sentences be served consecutive to each other
for an aggregate prison term of 150 years. Brown filed a timely notice of appeal
from this judgment. On appeal, Brown raises the following assignments of error.
First Assignment of Error
[Brown’s] due process rights were violated by the improper
admission of testimony from police officers and a forensic
interviewer to the effect that the alleged victim and his family
were being truthful.
Second Assignment of Error
The trial court improperly imposed mandatory prison terms on
counts three and six for gross sexual imposition.
Third Assignment of Error
[Brown] was deprived of his rights to the effective assistance of
counsel under the state and federal constitutions because defense
counsel failed to object to improper testimony and unlawful
mandatory prison terms.
Bolstering of Testimony
{¶6} In his first assignment of error, Brown alleges that the trial court erred
by allowing police officers and a forensic interviewer to testify to the effect that the
Victim and his family were being truthful. The determination of the weight to be
given to evidence and the assessment of a witness’ credibility is left to the trier of
fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). “In our system
of justice it is the fact finder, not the so-called expert or lay witnesses, who bears
the burden of assessing the credibility and veracity of witnesses.” State v. Eastham,
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Case No. 1-22-55
39 Ohio St.3d 307, 312, 530 N.E.2d 409 (1988). As a result, the opinion of one
witness as to the veracity of another witness is inadmissible. State v. Smith, 10th
Dist. Franklin No. 16AP-21, 2017-Ohio-9283, ¶46, 102 N.E.3d 9283. “When such
testimony is admitted, it is subject to a harmless error analysis on review.” Id.
{¶7} Initially, we note that Brown does not specifically identify which
statements he finds to be bolstering the testimony of the Victim and the family
members who testified. A review of the record shows that the State asked Sergeant
Lawrence Wallace (“Wallace”) if there was anything in the demeanor of the Victim,
B.B., or the Victim’s grandmother that he “found to be disingenuous”. Tr. 317.
Wallace answered “No.” Tr. 317.
{¶8} Deputy Clayton Eichman (“Eichman”) testified to the demeanor of the
Victim, B.B. and the Victim’s grandmother. Like Wallace, Eichman was also asked
if he found anything in the demeanor of the Victim, B.B., and the Victim’s
grandmother to be disingenuous. Eichman answered no to each question.
{¶9} Shelby Lutterbein (“Lutterbein”) testified that she is an investigator for
Allen County Children’s Services. Lutterbein testified that during the interview
she conducted with the Victim, the Victim’s reactions were not atypical. The State
asked Lutterbein how she knew if a child was lying to her and she testified to some
indications of deception she sees in children. Lutterbein then testified that she did
not observe those indications when interviewing the Victim.
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{¶10} In all of the above testimony, the State did not specifically ask the
witnesses if they believed the testimony of the Victim and the family members.
Instead, the State asked the witnesses if they observed anything in their interactions
with the Victim and the family members that would indicate they were lying. This
Court has previously addressed this issue in State v. Daley. 3d Dist. Seneca No. 13-
13-26, 2014-Ohio-2128. In Daley, the detective was specifically asked as follows.
Q: You’ve been trained in identifying deception in people that you
deal with, haven’t you?
A: Correct.
Q: Did Ms. Tenney display or demonstrate, during the course of that
portion of the interview where she revealed the sexual incident, did
she demonstrate behaviors indicating that she was being deceptive?
A: No. No, she did not.
Id. at ¶ 47. The detective did not testify whether a witness “was truthful or not
deceptive but rather, that she did not ‘display or demonstrate * * * behaviors
indicating that she was being deceptive’”. Id. at ¶ 50.
Testimony based on the perception of a witness is within the scope of
permissible lay opinion testimony under Evid.R. 701. * * * Here,
Detective Reinbolt testified about Tenney’s behavior as he perceived
it when she was describing “the sexual incident.” * * * This testimony
did not rise to the level of expressing an opinion as to the veracity of
Tenney and as such, was not improper. See [State v. Davis, 116 Ohio
St.3d 404, 2008-Ohio-2, 116-120, 880 N.E.St.3d 404] (holding that a
lay witness’s testimony that another witness was “very non-
committal, very wishy washy,” was not an improper description of the
witness’s demeanor that was relevant in showing evasiveness).
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Id. This Court then found the testimony to be admissible, as it did not
“impermissibly infringe on the role of the fact finder”. Id. at ¶ 53.
{¶11} Brown argues that allowing the above referenced testimony was
allowing the witnesses to testify as to the veracity of the Victim and the family
members. However, the testimony of the witnesses went to what they observed or
did not observe, not to the truthfulness of the witness. Evidence Rule 701 allows a
witness to testify to an opinion if it is 1) rationally based on the perception of the
witness and 2) would be helpful to a clear understanding of the witness’s testimony
or a determination of a fact in issue. The testimony of the witnesses complies with
the requirements of Evidence Rule 701. Pursuant to this Court’s holding in Daley,
the testimony of the witnesses was admissible. The first assignment of error is
overruled.
Mandatory Sentences for Gross Sexual Imposition
{¶12} Brown claims in the second assignment of error that the trial court
erred by ordering that his sentences for the gross sexual imposition convictions were
mandatory pursuant to R.C. 2905.05(C)(2). In support of this argument, Brown
cites to the Ohio Supreme Court’s holding in State v. Bevly, 142 Ohio St.3d 41,
2015-Ohio-475, 27 N.E.3d 516. The State concedes that the trial court held contrary
to the holding in Bevly and requests a remand for a new sentencing hearing. We
agree.
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{¶13} In Bevly, the Court held as follows.
[B]ecause there is no rational basis for the provision in R.C.
2907.05(C)(2)(a) that requires a mandatory prison term for a
defendant convicted of gross sexual imposition when the state has
produced evidence corroborating the crime, the statute violates the
due-process protections of the Fifth and Fourteenth Amendments to
the United States Constitution. Furthermore, because a finding of the
existence of corroborating evidence pursuant to R.C.
2907.05(C)(2)(a) is an element that must be found by a jury, we hold
that the application of R.C. 2907.05(C)(2)(a) in this case violated
Bevly’s right to trial by jury found in the Sixth and Fourteenth
Amendments of the United States Constitution.
Bevly, supra at ¶ 29. The Court then reversed the judgment and remanded the case
to the trial court for resentencing. Id.
{¶14} This Court recently addressed a similar case. In State v. Smith, the
defendant was convicted of 17 counts of rape and four counts of gross sexual
imposition. State v. Smith, 3d Dist. Allen No. 1-22-40, 2023-Ohio-1613. Smith
argued on appeal that the trial court erred by imposing mandatory prison terms for
gross sexual imposition based upon a finding that there was evidence to corroborate
the victim’s claims. This Court held that the trial court erred by finding that the
sentences were mandatory and that the sentence was contrary to law. Id. at ¶ 46.
This Court went on to say in the Smith case, that the error was “obvious, and any
sentence imposed by the trial court for gross sexual imposition upon remand would
be different, as it would not be a mandatory sentence. Id. at ¶ 47. The assignment
of error was sustained and the matter was remanded for resentencing. Id. at ¶ 48.
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{¶15} Here, Brown was found guilty of the charges by a jury. Pursuant to
the holdings in Bevly and Smith, we hold that the sentence imposed by the trial court
was contrary to law. Although there will not be a practical effect on the length of
Brown’s imprisonment given the extent of the sentence imposed, it is appropriate to
remand this matter for resentencing as to Counts 3 and 6. The second assignment
of error is sustained.
Ineffective Assistance of Counsel
{¶16} In the third assignment of error, Brown claims that he was denied the
effective assistance of counsel because counsel 1) failed to object to the bolstering
testimony and 2) failed to object to the mandatory prison terms for the gross sexual
imposition.
In evaluating whether a petitioner has been denied effective assistance
of counsel, this court has held that the test is “whether the accused,
under all the circumstances, * * * had a fair trial and substantial justice
was done.” State v. Hester (1976), 45 Ohio St.2d 71, 74 O.O.2d 156,
341 N.E.2d 304, paragraph four of the syllabus. When making that
determination, a two-step process is usually employed. “First, there
must be a determination as to whether there has been a substantial
violation of any of defense counsel's essential duties to his client.
Next, and analytically separate from the question of whether the
defendant's Sixth Amendment rights were violated, there must be a
determination as to whether the defense was prejudiced by counsel's
ineffectiveness.” State v. Lytle (1976), 48 Ohio St.2d 391, 396–397,
2 O.O.3d 495, 498, 358 N.E.2d 623, 627, vacated on other grounds
(1978), 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154.
On the issue of counsel's ineffectiveness, the petitioner has the burden
of proof, since in Ohio a properly licensed attorney is presumably
competent. See Vaughn v. Maxwell (1965), 2 Ohio St.2d 299, 31
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O.O.2d 567, 209 N.E.2d 164; State v. Jackson, 64 Ohio St.2d [107] at
110–111, 18 O.O.3d [348] at 351, 413 N.E.2d [819] at 822.
State v. Calhoun, 86 Ohio St.3d 279, 289, 1999-Ohio-102, 714 N.E.2d 905. “The
failure to prove either 1) a substantial violation or 2) prejudice caused by the
violation makes it unnecessary for a court to consider the other prong of the test.”
State v. Walker, 3d Dist. Seneca No. 13-15-42, 2016-Ohio-3499, 66 N.E.3d 349, ¶
20. “To show prejudice, the defendant must show a reasonable probability that, but
for counsel's errors, the result of the proceeding would have been different.” State
v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95. “The
prejudice inquiry, thus, focuses not only on outcome determination, but also on
‘whether the result of the proceeding was fundamentally unfair or unreliable.’”
State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180 quoting
Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993).
{¶17} Here, Brown alleges that counsel made two substantial errors. The
first is that counsel failed to object to the statements by witnesses that bolstered the
testimony of the Victim and the Victim’s family members. This issue was addressed
in the first assignment of error and found to be without merit. Since no violation
was found, counsel could not have been ineffective for this alleged failure.
{¶18} Brown also claims that counsel was ineffective for failing to object to
the imposition of mandatory sentences on the gross sexual imposition convictions.
This issue was addressed in the second assignment of error. Having found that the
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trial court erred in imposing the mandatory sentences, the matter was remanded for
resentencing. As a result, this claim is rendered moot and need not be addressed at
this time. For these reasons, the third assignment of error is overruled.
{¶19} Having found error prejudicial to the appellant in the particulars
assigned and argued, the judgment of the Court of Common Pleas of Allen County
is affirmed in part and reversed in part. The matter is remanded to the trial court for
the purpose of resentencing as to Counts 3 and 6 in accord with this opinion.
Judgment Affirmed in Part
Reversed in Part
MILLER, P.J. and ZIMMERMAN, J., concur.
/hls
** Judge Stephen W. Powell of the Twelfth District Court of Appeals, sitting
by Assignment of the Chief Justice of the Supreme Court of Ohio.
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