[Cite as State v. Brown , 2017-Ohio-4241.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                    TRUMBULL COUNTY, OHIO


STATE OF OHIO,                                  :        OPINION

                 Plaintiff-Appellee,            :
                                                         CASE NO. 2016-T-0105
        - vs -                                  :

FELIX O. BROWN, JR.,                            :

                 Defendant-Appellant.           :


Criminal Appeal from the Trumbull County Court of Common Pleas.
Case No. 1995 CR 00127.

Judgment: Affirmed.


Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481-1092 (For Plaintiff-Appellee).

Felix O. Brown, Jr., pro se, PID: A312-676, Lorain Correctional Institution, 2075 South
Avon-Belden Road, Grafton, OH 44044 (Defendant-Appellant).



TIMOTHY P. CANNON, J.

        {¶1}     Appellant, Felix O. Brown, Jr., appeals the October 14, 2016 judgment of

the Trumbull County Court of Common Pleas denying his “Motion to Vacate Void

Judgment.” For the following reasons, we affirm the trial court’s judgment.

        {¶2}     Seventeen years ago, a jury found appellant guilty of murder, in violation

of R.C. 2903.02, with a firearm specification under R.C. 2941.145 and having weapons

while under disability, in violation of R.C. 2923.13.       Appellant appealed from his
conviction. The conviction was upheld by this court in State v. Brown, 11th Dist. Nos.

95-T-5349 & 98-T-0061, 2000 WL 522339 (Mar. 31, 2000).

       {¶3}   On August 25, 2011, appellant filed a “Civil Rules Rule 60(B) motion for

relief from judgment, or in the alternative, Crim.R. 47 motion to vacate judgment,”

arguing the trial court’s judgment of conviction was void due to misnomer.              On

September 20, 2011, appellant filed a motion to amend the Civ.R. 60(B)/Crim.R. 47

motion, requesting to include the argument that the trial court violated the statutory

mandate of R.C. 2945.11 when it refused to instruct the jury on the law of accident.

       {¶4}   The trial court denied appellant’s Civ.R. 60(B)/Crim.R. 47 motion and

overruled his motion to amend. On appeal, this court affirmed. State v. Brown, 11th

Dist. Trumbull No. 2011-T-0101, 2012-Ohio-4465.              We found the argument in

appellant’s motion to amend was barred by res judicata because he could have raised it

on direct appeal.

       {¶5}   On August 25, 2016, appellant filed a motion to vacate void judgment,

stating the motion was filed in accordance with Crim.R. 47.           Appellant alleged his

judgment of conviction is void because the trial court acted without authority when it

failed to instruct the jury on the lesser-included offenses of reckless homicide and

involuntary manslaughter and on the defense of accident.

       {¶6}   Appellee, the state of Ohio, filed a brief in opposition to appellant’s motion

to vacate void judgment, arguing appellant’s arguments were barred by the doctrine of

the law of the case. Appellee maintained appellant raised the same or similar issues in

his prior Civ.R. 60(B)/Crim.R. 47 motion and that, on appeal, this court held his

argument regarding failing to instruct the jury on the defense of accident was barred by

res judicata. Appellant filed a reply to appellee’s brief in opposition.

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       {¶7}   On October 14, 2016, the trial court denied appellant’s motion to vacate

void judgment filed August 25, 2016, finding appellant’s arguments were barred by res

judicata.

       {¶8}   On November 7, 2016, appellant filed a timely notice of appeal from the

trial court’s October 14, 2016 judgment.

       {¶9}   Appellant raises two assignments of error on appeal:

              [1.] The Court erred as a matter of law, when it applied the Doctrine
              of Res judicata to a void judgment. Where it has been clearly
              shown that the trial court, during Appellant’s criminal jury trial
              proceedings, acted in a manner wholly unauthorized by law, and
              thereby worked a manifest injustice, by blatantly disregarding the
              applicable rules of law – issued by, both, the Supreme Court of
              Ohio (State v. Loudermill, 2 Ohio St.2d 79), and the Ohio General
              Assembly (O.R.C. § 2945.11) – when [it] totally refused to properly
              charge the jury on the law on any lesser included offense on
              murder; where the evidence presented in support was obvious, and
              when the reading of a lesser included offense instruction had been
              properly and timely requested by defense counsel.

              [2.] The Court abused its’ discretion when the Doctrine of Res
              judicata was applied to Appellant’s Ground For Relief; where the
              Court pronounced the following: ‘[The defendant has already taken
              this matter before the Eleventh District Court of Appeals. Therefore,
              upon review, the Court finds the relief requested is barred by res
              judicata. The Motion to Vacate Void Judgment is not well taken and
              the same is hereby denied.’ Whereas, the merit of Appellant’s
              Ground One For Relief, as well as the controlling law of the Ohio
              Supreme Court offered in support; has never been raised, argued
              or reviewed by any court: state or federal.

       {¶10} Appellee waived its right to submit an answer brief, but referred this court

to its brief in opposition to appellant’s motion to vacate void judgment.       Appellee

maintains the trial court properly applied the doctrine of res judicata and requests this

court affirm the trial court’s decision to deny the motion.

       {¶11} We address appellant’s assignments of error together. Appellant argues

the trial court erred in finding his arguments were barred by res judicata. Appellant

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maintains his judgment of conviction was void and not subject to res judicata because

the trial court acted in contravention of R.C. 2945.11, which states in pertinent part: “In

charging the jury, the court must state to it all matters of law necessary for the

information of the jury in giving its verdict.” Appellant argues the trial court failed to

instruct the jury on “all matters of law necessary” when it did not instruct the jury on any

lesser-included offenses or on the defense of accident.

       {¶12} “In general, a void judgment is one that has been imposed by a court that

lacks subject-matter jurisdiction over the case or the authority to act.” State v. Bozek,

11th Dist. Portage No. 2015-P-0018, 2016-Ohio-1305, ¶20 (emphasis deleted), citing

State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, ¶27. Res judicata does not apply

to challenges to void judgments, which can be challenged at any time. State v. Bennett,

4th Dist. Scioto No. 15CA3682, 2015-Ohio-3832, ¶11 (citations omitted). In contrast, “a

voidable judgment is one rendered by a court that has both jurisdiction and authority to

act, but the court’s judgment is invalid, irregular, or erroneous.” Bozek, supra, at ¶20

(citations omitted). Challenges to voidable judgments are barred by res judicata if not

raised on direct appeal. State v. Parson, 2d Dist. Montgomery No. 24641, 2012-Ohio-

730, ¶10 (citation omitted).

              Under the doctrine of res judicata, a final judgment of conviction
              bars the convicted defendant from raising and litigating in any
              proceeding, except an appeal from that judgment, any defense or
              any claimed lack of due process that was raised or could have
              been raised by the defendant at the trial which resulted in that
              judgment of conviction or on an appeal from that judgment.

State v. Perry, 10 Ohio St.2d 175, 180 (1967) (citation omitted).

       {¶13} Here, the trial court had jurisdiction over appellant’s case.       See R.C.

2931.03. Any potential error in the trial court’s legitimate exercise of its jurisdiction,



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including the omission of an instruction on a lesser-included offense or on a defense,

rendered the court’s judgment voidable and not void. See State v. Evans, 2d Dist.

Montgomery No. 26574, 2015-Ohio-3161, ¶12 (“any alleged error in jury instructions is

something that must be raised on direct appeal”).

       {¶14} It has not been established that the trial court committed any error in

instructing the jury at appellant’s trial. However, even if it did, an erroneous decision on

how to instruct the jury does not render a judgment “void”. Because appellant did not

raise any alleged error in this regard on direct appeal, his argument is barred by res

judicata.

       {¶15} Furthermore, “the decision of a reviewing court in a case remains the law

of that case on the legal questions involved for all subsequent proceedings in the case

at both the trial and reviewing levels.” Nolan v. Nolan, 11 Ohio St.3d 1, 3 (1984)

(citations omitted).    This court previously determined that appellant’s argument

regarding the trial court’s failure to give a jury instruction on the defense of accident was

barred by res judicata. Brown, supra, at ¶22. Therefore, our previous judgment with

regard to that issue remains the law for all subsequent proceedings in this case.

       {¶16} Appellant’s assignments of error are overruled.

       {¶17} For the foregoing reasons, the judgment of the Trumbull County Court of

Common Pleas is affirmed.



THOMAS R. WRIGHT, J., concurs,

COLLEEN MARY O’TOOLE, J., concurs in judgment only.




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