[Cite as State v. Brown, 2016-Ohio-7221.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 103491




                                      STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                  FREDRIC A. BROWN
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                  Case No. CR-14-587887-A

        BEFORE: E.A. Gallagher, P.J., McCormack, J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: October 6, 2016
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender
BY: Jeffrey Gamso
Assistant Public Defender
310 Lakeside Ave., Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Marcus A. Henry
       Holly Welsh
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, P.J.:

          {¶1} Defendant-appellant Fredric Brown appeals his convictions for trafficking in

persons in the Cuyahoga County Court of Common Pleas. For the following reasons, we

affirm.

          Facts and Procedural Background

          {¶2} Brown was indicted on August 5, 2014 on two counts of trafficking in

persons naming two separate victims, two counts of compelling prostitution and one

count of possessing criminal tools.      The case proceeded to a bench trial on May 13,

2015. Prior to trial, the state moved to amend both counts of trafficking in persons to

remove what it described as a “typo.”        The alleged “typo” was the inclusion in the

indictment of an additional mens rea of knowledge on the part of Brown that the

respective victims in the two counts of trafficking in persons were less than 16 years of

age at the time of the offense.    Brown’s trial counsel did not object to the amendment,

conceding that such mens rea regarding the age of the victims was not an element of the

offense pursuant to R.C. 2905.32(A)(2)(a).     The trial court allowed the amendments, the

case proceeded to trial and Brown was found guilty on all five counts.

          {¶3} The trial court found Brown’s convictions for trafficking in persons and

compelling prostitution as to the separate victims to be allied offenses and merged the

offenses. The trial court also merged Brown’s conviction for possessing criminal tools

into the above counts. The state elected to proceed to sentencing under the two counts of

trafficking in persons.    The trial court imposed a 10-year prison term on the first count
of trafficking in persons and a 13-year prison term on the second count.         The court

ordered the two terms to be served concurrently. Brown was also found to be a tier three

sex offender.

       I. The Amendment of the Indictment

       {¶4} In his first assignment of error, Brown argues that the trial court violated his

right to an indictment by a grand jury under Section 10, Article I of the Ohio Constitution

and the Fifth Amendment of the United States Constitution by allowing the amendment of

the indictment for the purposes of deleting the extraneous mens rea regarding the age of

the victims.

       {¶5} The parties do not dispute that the deleted language was not required to

establish a violation of trafficking in persons under R.C. 2905.32(A)(2)(a).         Brown

instead argues that he was prejudiced by the trial court’s amendment because the state

was not held to the additional, heightened burden stated in the indictment returned by a

grand jury.

       {¶6} Under Crim.R. 7(D), a court may amend an indictment “at any time” if the

amendment does not change “the name or identity of the crime charged.” State v.

Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 69. An amendment that

changes the penalty or degree of the charged offense changes the identity of the offense

and is not permitted by Crim.R. 7(D). Id., citing State v. Davis, 121 Ohio St.3d 239,

2008-Ohio-4537, 903 N.E.2d 609, syllabus. However, “[a]s long as the state complies

with Crim.R. 7(D), it may cure a defective indictment by amendment, even if the original
indictment omits an essential element of the offense with which the defendant is

charged.”      Id., quoting State v. Pepka, 125 Ohio St.3d 124, 2010-Ohio-1045, 926

N.E.2d 611, ¶ 15.

       {¶7} The present case involves not the omission of an essential element but rather

the deletion of a superfluous one. Regarding this distinction, Brown’s argument relies

upon the United States Supreme Court’s decision in Ex parte Bain, 121 U.S. 1, 7 S.Ct.

781, 30 L.Ed. 849 (1887). In Bain, the indictment charged that Bain, the cashier and

director of a bank, made false statements “with intent to deceive the Comptroller of the

Currency and the agent appointed to examine the affairs” of the bank. Id. at 4.     Before

trial, the court struck the words “the Comptroller of the Currency and,” on the ground that

they were superfluous. The jury found Bain guilty. Id. at 4-5. Bain challenged the

amendment to the indictment in a petition for a writ of habeas corpus. The court held that

the deletion of allegations from the indictment that would not have been necessary to

prove the offense was an unconstitutional amendment that compromised the defendant’s

right to be tried only on a grand jury’s indictment. Id.; United States v. Cotton, 535 U.S.

625, 631, 122 S.Ct. 1781, 152 L.Ed. 2d 860 (2002); United States v. Miller, 471 U.S. 130,

140-145, 105 S.Ct. 1811, 85 L.Ed. 2d 99 (1985).

       {¶8} However, the Supreme Court retreated from this particular portion of Bain’s

holding in United States v. Miller, 471 U.S. 130, 140-145, 105 S.Ct. 1811, 85 L.Ed. 2d 99

(1985).     The Miller court noted that Bain involved an amendment that deleted from an

indictment allegations that would not have been necessary to prove the offense. Miller
proceeded to overrule that portion of Bain’s holding that such an amendment was

unconstitutional:

       To the extent Bain stands for the proposition that it constitutes an
       unconstitutional amendment to drop from an indictment those allegations
       that are unnecessary to an offense that is clearly contained within it, that
       case has simply not survived. To avoid further confusion, we now explicitly
       reject that proposition.

Id. at 144.

       {¶9} Consistent with Miller and Crim.R. 7(D), we find no error in the trial court’s

amendment of the indictment for the purpose of deleting the superfluous mens rea here.

       {¶10} Brown’s first assignment of error is overruled.

       II. The Victim’s Age

       {¶11} In his second assignment of error, Brown argues that the state failed to

introduce sufficient evidence to establish the age of R.W., the victim in his first count of

trafficking in persons.

       {¶12} The state alleged that R.W. was less than 16 years of age at the time of the

offense and was required to prove this fact in order to sustain a conviction for trafficking

in persons in violation of R.C. 2905.32(A)(2)(b).

       {¶13} R.W. did not testify at trial. However, the state introduced R.W.’s medical

records during the testimony of a S.A.N.E. nurse who examined R.W. following the

offense.      The medical records are replete with references to R.W.’s date of birth, May 3,

1999. As such, the records establish that R.W. was 15 years old on the date of the

offense, to-wit date of offense July 28, 2014. Brown stipulated to R.W.’s medical
records reserving only a confrontation clause objection due to the fact that R.W. failed to

testify at trial.1

        {¶14} Brown argues that R.W.’s date of birth contained within the medical records

constitutes inadmissible hearsay. However, his stipulation did not reserve any objection

to the medical records regarding hearsay contained therein and, therefore, his present

hearsay challenge is precluded. Wingfield v. Howe, 8th Dist. Cuyahoga No. 85721,

2006-Ohio-276, ¶ 29, citing Wilson v. LTV Steel Co., Inc., 8th Dist. Cuyahoga No. 59515,

1992 Ohio App. LEXIS 3007 (June 11, 1992); Havens v. Havens, 10th Dist. Franklin No.

11AP-708, 2012-Ohio-2867, ¶ 21.

        {¶15} We note that even if Brown had elected to condition his stipulation to

R.W.’s medical records upon a hearsay objection, the S.A.N.E. nurse in this case testified

that she obtained information from the patients as to the nature of their injuries and causes

for medical treatment.     The nurse’s gathering and documentation of the victim’s date of

birth would be admissible as a statement made for purposes of medical diagnosis or

treatment under the hearsay exception contained within Evid.R. 803(4).2

        {¶16} Brown’s second assignment of error is overruled.


        1
         Although not directly raised in Brown’s argument, we note that the Ohio Supreme Court has
held that statements made for the purpose of medical diagnosis and treatment are nontestimonial.
State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, 933 N.E.2d 775, ¶ 28, citing State v. Muttart,
116 Ohio St.3d 5, 2007-Ohio-5267, 875 N.E.2d 944, ¶ 63.
        2
         The victim’s date of birth appears more than 20 times within her medical records from this
incident. One can hardly argue that that level of documentation by medical providers was
accomplished for an investigative purpose rather than for providing appropriate medical treatment.
       III. Ineffective Assistance of Counsel

       {¶17} In his third assignment of error, Brown argues that his trial counsel failed to

provide effective assistance of counsel by failing to object to the alleged errors addressed

in the first two assignments of error.

       {¶18} To prevail on a claim of ineffective assistance of counsel, a defendant must

demonstrate: (1) deficient performance by counsel, i.e., that counsel’s performance fell

below an objective standard of reasonable representation, and (2) that counsel’s errors

prejudiced the defendant, i.e., a reasonable probability that but for counsel’s errors, the

result of the proceeding would have been different. Strickland v. Washington, 466 U.S.

668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio

St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. “Reasonable

probability” is “probability sufficient to undermine confidence in the outcome.”

Strickland at 694.

       {¶19} For the reasons addressed in the first two assignments of error we find no

merit to Brown’s ineffective assistance of counsel claim.        In addition to the above

arguments, Brown also argues that his trial counsel was ineffective for failing to object to

hearsay testimony regarding R.W.’s age that was introduced during the testimony of one

of the responding police officers. However, Brown was not prejudiced by his counsel’s

failure to object to this testimony because R.W.’s age was established within the

stipulated medical records.

       {¶20} Brown’s third assignment of error is overruled.
      {¶21} The judgment of the trial court is affirmed.

      It is ordered that appellee recover from appellant the costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having been

affirmed, any bail pending appeal is terminated. Case remanded to the trial court for the

execution of sentence.




      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



_______________________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE

TIM McCORMACK, J., and
EILEEN T. GALLAGHER, J., CONCUR
