Opinion

State v. Brown

  • 2024 Ohio 1024
Court
Ohio Court of Appeals
Filed
Mar 20, 2024
Status
Published
On the bench
Zayas
Cited by
0 cases
Authority
More cited than 15.6%

The opinion

[Cite as State v. Brown, 2024-Ohio-1024.]

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-230344

TRIAL NO. B-2106094

Plaintiff-Appellee, :

vs. : O P I N I O N.

DONALD BROWN, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: March 20, 2024

Melissa A. Powers, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,

Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond L. Katz, for Defendant-Appellant.

OHIO FIRST DISTRICT COURT OF APPEALS

ZAYAS, Presiding Judge.

{¶1} Donald Brown appeals from his conviction for felonious assault

following a jury trial. In one assignment of error, he contends the conviction was

against the weight of the evidence because the jury lost its way when it believed the

victim’s testimony that Brown struck her.

Factual Background

{¶2} Donald Brown was charged with aggravated robbery with firearm

specifications, robbery and felonious assault for attempting to rob and causing serious

physical harm to Sharon Pittman. He pled not guilty and proceeded to a jury trial.

{¶3} Officer Dave Harris, an officer in District Three with the Cincinnati

Police Department (“CPD”) testified that he was patrolling with his partner Trent

Meucci in the Westwood/Fairmount area on November 7, 2021. He responded to a

call on Lafeuille Ave. and found a female whose face was completely covered in blood

sitting on the steps of an apartment complex. The woman told him that a man gave

her a ride, and when she declined his sexual advances, he struck her in the face with a

handgun multiple times.

{¶4} The beginning five minutes and 30 seconds of the video from Harris’s

body-worn camera, which showed the officers’ initial interactions with the victim, was

played for the jury. The officers stepped away from the victim to allow the paramedics

to transport her to the hospital. Meucci’s body-worn camera video was also admitted

into evidence.

{¶5} On cross-examination, Harris confirmed that Pittman did not mention

that she was engaged in sexual activity for hire, went to Brown’s home, and was paid

by him. Harris testified that that area is a known prostitution area. Harris was

questioned about the police report he wrote. The report reflected that the victim,

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OHIO FIRST DISTRICT COURT OF APPEALS

Sharon Pittman, had an argument with her friend and got out of his car. Pittman saw

a man, later identified as Brown, walking up the street with keys in his hand, and she

accepted a ride from him. While in the car, he asked for oral sex. When she said, “No,”

Brown began to beat her with a gun. Pittman never mentioned that Brown tried to

take her money.

{¶6} Pittman testified that she was prostituting on November 7, 2021, on

Warsaw and Fairbanks. Brown picked her up, and they went to his home on Harrison

Avenue to have sex. After 15 minutes, they got dressed, and Brown paid her $40. They

got back in his car so he could drive her back to Warsaw and Fairbanks. Instead, he

drove down Lafeuille. Brown pulled over and said he needed to check his tire pressure.

He got out of the car, opened the front passenger door, put a gun in her face, and

demanded all of her money. Pittman described the gun as black but could not

remember the size of the gun. Pittman testified that she did not possess Brown’s cell

phone or any needles. Pittman identified Brown in court.

{¶7} Instead of giving him her money, Pittman began screaming and kicking

him. After she kicked him in the stomach, he started hitting her head and face with

the butt of the gun. Pittman could not remember how he was holding the gun, but it

was in his right hand. Brown hit her five or six times. She got out of the car and ran

down the street. When she saw a four-family apartment with the porch light on,

Pittman ran to that porch hoping someone was awake. Brown got back into his car

and sat there for a little while. Then he drove down the street, turned around, and left.

{¶8} After waiting for a little while, Pittman called 911. The 911 call was

played in court, but most of the call was unintelligible. Pittman recognized her voice

but could not understand most of the conversation. Pittman told the operator Brown

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OHIO FIRST DISTRICT COURT OF APPEALS

was wearing an orange shirt and Nike slides. She described his Camaro as a “hot rod.”

Pittman told the operator that he wanted to have sex and was touching her, and she

told him she did not want to have sex. Pittman testified that she was ashamed to tell

the operator and the police officers that she was engaged in sexual activity for hire.

Pittman did not tell the officers that Brown tried to rob her “because of the story I was

telling.” She clarified that she did not want to say anything about the money because,

“he was trying to touch me, and that was the story.”

{¶9} The next day, she spoke with Detective Hall for a few hours. She told

Hall the truth that she was prostituting, and after having sex with Brown, he

demanded her money. Pittman told him the truth “because I wanted to get the real

story out. It made more sense.” Pittman drove to Brown’s apartment building with

Hall and told him what apartment she had entered. Pittman identified Brown in a

photo lineup.

{¶10} Pittman denied having any mental-health issues, but admitted she had

been diagnosed with borderline personality disorder. At some point, she was

proscribed antidepressants but was not taking them in November 2021. Pittman

testified that she was using crack cocaine around that time but not heroin. Pittman

received stitches on her left forehead, left eyebrow, and her scalp. She also had a

rectangular mark on her cheek and two black eyes. Pittman testified that her injuries

were caused by Brown.

{¶11} On cross-examination, Pittman admitted to having sex with Brown in

his home but denied asking Brown to drive her downtown. Then the following

exchange occurred:

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OHIO FIRST DISTRICT COURT OF APPEALS

Q: Okay. When you called the police, you don’t tell them that you’ve

been to his house, do you?

A: No.

Q: In fact, on the 911 call, you say that he gave you a ride.

A: Yeah.

Q: He started touching you sexually.

A: Yeah.

Q: And then he just started hitting you with a gun.

A: Yeah.

Q: Not one of those things is true, is it?

A: No.

Q: Okay. When the police arrived, you talked to the police on the scene.

A: Yes.

Q: And that he demanded oral sex from you.

A: Yes.

Q: But that’s not true, right?

A: No.

Q: That was a lie.

A: Yes.

Q: That you said, “no,” right?

A: Right.

Q: That’s also a lie.

A: Yes.

Q: And when you said no, he started hitting you with a gun.

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OHIO FIRST DISTRICT COURT OF APPEALS

A: Yes.

Q: That’s also a lie.

A: Yes.

***

Q: So on November 7th, 2021, you had a conversation with a police

officer.

A: Yes.

Q: And you told them that you had a fight with a friend.

A: I guess.

Q: Okay. But that’s not true.

A: I don’t know. No, that’s not true.

Q: And you said you saw [Brown] walking down the street with keys in

his hand.

A: I said I saw him walking out of his apartment with keys in his hand.

Q: And when you saw him walking out of his apartment, you asked him

for a ride.

A: Yes.

Q: But that’s a lie, right?

A: Yes.

Q: Because that didn’t happen?

A: No. It did not.

Q: During the course of this driving, that’s when he supposedly asked

you for the oral sex, right? At least that’s the story that you told the

police.

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OHIO FIRST DISTRICT COURT OF APPEALS

A: That’s the story I told them.

Q: But that was a lie.

A: That was a lie.

Q: And then you said he pulled out a handgun and started hitting you.

A: Yes.

Q: But that was also a lie.

A: Yes.

Q: Because, according to your story today, he somehow gets out of his

car, comes around to the passenger side, and then demands money from

you on the passenger side outside of the car.

A: Yes.

{¶12} Pittman admitted that she changed her story the next morning when

she spoke with Hall. Hall had come to her home, and she told him the truth.

{¶13} Detective David Hall, a CPD officer, testified that he was assigned the

case on November 8, 2021. He read the reports and called Pittman to interview her.

They discussed the details over the phone, and Hall went to her home because she

indicated that she could show him where Brown lived. After speaking for 15 minutes,

they drove to Brown’s apartment. Pittman indicated that Brown lived in apartment 2.

Hall drove Pittman home and returned to investigate further. The mailbox for

apartment 2 said “Donald Brown.” As Hall was leaving, he saw a Camaro parked on

the street that matched Pittman’s description of the car. The car was registered to

Cheryl Wright. When Hall checked all of the vehicles registered to Wright, one was

also registered to Donald Brown.

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OHIO FIRST DISTRICT COURT OF APPEALS

{¶14} Hall pulled up Brown’s information, and the photo matched Pittman’s

description. Hall created a photo lineup, and Officer Adams conducted the lineup.

Pittman identified Brown. Hall knocked on Brown’s door several times, but was

unable to speak with him before signing the arrest warrant. After Brown was arrested,

Hall interviewed him. When questioned about the incident, Brown said that he did

not know Pittman. Hall showed him photos of Pittman, and Brown reaffirmed that he

did not know who she was. Brown said that he and his mother were the only ones who

drove the Camaro, and he had not driven it within the last month. Hall never located

the car.

{¶15} At the time of the interview, Brown was wearing a knit Bengals hat.

Pittman had reported that her assailant was wearing a knit Bengals hat when she was

assaulted. After the interview, Hall reviewed Brown’s Facebook page and found

several photos of Brown wearing the Bengals hat.

{¶16} On cross-examination, Hall stated that the only photo he showed Brown

was the photo of Pittman’s bloody face. When Hall initially spoke with Pittman, she

indicated that she had not provided all of the details of the attack to the other officers.

She admitted to Hall that she was engaged in sexual activity for hire. Hall confirmed

that he wrote the affidavit to support Brown’s arrest based on Pittman’s statements.

The affidavit did not include that Pittman was engaged in sexual activity for hire or

that Brown attempted to take the money he had just paid her. The affidavit included

the sentence, “When the victim attempted to swing her legs out of the vehicle to flee,

Brown pushed her legs back inside the vehicle, preventing her from leaving.”

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OHIO FIRST DISTRICT COURT OF APPEALS

{¶17} Detective James Adams testified that he conducted the photo lineup

with Pittman. When Adams showed her the lineup, she identified Brown as the

perpetrator. When Pittman saw Brown’s photo, she began shaking.

{¶18} CPD detective Darris Sneed testified that he interviewed Brown after

Hall’s interview ended. Brown told him that he did not know Pittman and denied any

knowledge or involvement in the incident. After Sneed’s testimony, the state rested.

{¶19} Brown testified that he never tried to rob Pittman, and he did not point

a gun at her and demand money or hit her with a gun. He testified that he punched

her in self-defense. While driving through Price Hill, Brown picked up Pittman to have

sex. Brown was driving his mother’s Camaro. They drove to his apartment and had

sex. Prior to having sex, Brown paid her $40. Afterwards, they left his apartment.

Brown intended to drive her where he picked her up, but she asked him to drive her

downtown to buy drugs. Brown testified that when he refused to drive her downtown,

her demeanor changed.

{¶20} Brown’s car was parked on the street, and Pittman got into the vehicle

first. When he got in, he began looking for his cell phone to use the Bluetooth to play

music, but he could not find his phone. Brown had left his phone on the car charger

in the car while they had sex. When he returned to the car, his phone was off the

charger. Brown could see that his phone was connected to the car’s Bluetooth, so he

knew it was in the car, but he could not find the phone. Brown’s locket was attached

to the side of his phone with a key holder.

{¶21} Brown turned around and started driving her back to where he picked

her up. He turned right on Lafeuille and stopped to check his tire because he had

problems with low tire pressure. Brown’s car was in the shop, so he was driving his

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OHIO FIRST DISTRICT COURT OF APPEALS

mother’s car. The front passenger tire on his mother’s car was low due to a bent rim.

As he was driving, the low tire pressure light came on, so he checked the tire to make

sure the car was still drivable. The tire was not as low as he expected. When he

checked the tire, he suspected that Pittman had his phone. He opened the passenger

door unexpectedly to see if she had his phone. Pittman was fidgeting like she was

trying to put something away when his phone lit up. When Brown asked Pittman if

she was trying to steal his phone, she pulled out a needle. Brown reached for his

phone, and Pittman said, “Back the f up,” and threatened to stab him with the needle

and give him AIDS. Brown was afraid for his life, but he reached for the cell phone

because the cell phone case contained his ID and three credit cards. Brown noticed

that she also had his gold locket containing the cremated remains of his father.

{¶22} Pittman tried to attack him while he stood in the doorway, preventing

her from leaving the car, and she was halfway out of the car. Pittman forced her way

out of the car and tried to stab him with the needle. Brown punched her several times.

He testified that he was trying to get his phone while protecting himself from being

stabbed. Pittman had placed his phone and locket in her coat pocket. During the

struggle, the phone and locket fell to the ground. Brown picked up his belongings, and

Pittman ran away. She was not bleeding when she fled.

{¶23} Pittman ran down the street, and Brown picked up his credit cards

because they had fallen out of the case. Then he left. Brown again denied trying to rob

her and testified that he did not own a gun and did not have a gun that night.

{¶24} After his arrest, Hall showed him a photo of a woman’s face covered with

blood, and he could not determine who it was. Brown testified that he did not

recognize Pittman from the photo. He admitted that he knew what they were talking

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OHIO FIRST DISTRICT COURT OF APPEALS

about, but he told the officer that he did not know what happened. Brown did not trust

the police because his stepfather was “murdered by the police,” and he did not want to

discuss the incident with them.

{¶25} Brown admitted that he had rented a gun before at a shooting range.

Hall had located photos of Brown at a shooting range on Brown’s Facebook page.

Brown testified that he had never previously hired a woman to engage in sexual

activity.

{¶26} The jury found Brown not guilty of the aggravated-robbery and robbery

offenses and found him guilty of felonious assault. He now appeals arguing that the

conviction was against the weight of the evidence.

Manifest Wright of the Evidence

{¶27} “In reviewing a weight-of-the-evidence claim, we review ‘the entire

record, weigh the evidence and all reasonable inferences, consider the credibility of

the witnesses and determine whether, in resolving conflicts in the evidence, the [trier

of fact] clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered.’ ” State v. Morris, 1st Dist.

Hamilton No. C-220073, 2022-Ohio-4597, ¶ 20, quoting State v. Thompkins, 78 Ohio

St.3d 380, 678 N.E.2d 541 (1997). “This court will not substitute its judgment for that

of the trier of fact on the issue of witness credibility unless it is patently apparent that

the trier of fact lost its way in arriving at its verdict.” Id.

{¶28} Brown was convicted of felonious assault under R.C. 2903.11(A)(1) for

knowingly causing serious physical harm to Pittman. Serious physical harm includes

any physical harm that involves some temporary, substantial incapacity, some

permanent disfigurement or temporary, serious disfigurement, or acute pain of such

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OHIO FIRST DISTRICT COURT OF APPEALS

duration as to result in substantial suffering or that involves any degree of prolonged

or intractable pain. R.C. 2901.01(A)(5)(c-e).

{¶29} Brown contends that Pittman’s admission on cross-examination that

her initial report to the police was inaccurate should be construed as an admission that

Brown never had a gun. Brown argues that the jury lost its way because Pittman

acknowledged, during cross-examination, that she lied about “every aspect of her

encounter with Donald Brown.”

{¶30} Brown’s entire argument is based on his claim that Pittman lied when

she testified on direct examination that Brown struck her with a gun because she

refuted that testimony on cross-examination. But the record does not support Brown’s

argument that Pittman admitted that Brown did not have a gun, and therefore, lied.

Pittman testified on direct examination that Brown opened the passenger door,

demanded money, and hit her with a gun when she refused. Although she testified

that her initial account of the attack was untrue, Pittman further testified that Brown

hit her multiple times with the butt of a gun and that she received stitches on her left

forehead, left eyebrow, and her scalp as a result of the assault. Photographs of the

injuries to Pittman’s face and her medical records were admitted into evidence,

documenting the serious physical harm.

{¶31} The jury was in the best position to assess the credibility of the witnesses

and resolve the conflicting testimony, and we defer to the jury regarding the credibility

of the witnesses. Based on this record, this court cannot conclude that the trier of fact

clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered.

{¶32} We overrule the assignment of error.

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OHIO FIRST DISTRICT COURT OF APPEALS

Conclusion

{¶33} Having overruled Brown’s sole assignment of error, we affirm the trial

court’s judgment.

Judgment affirmed.

WINKLER and KINSLEY, JJ., concur.

Please note:

The court has recorded its own entry this date.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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