[Cite as State v. Brown, 2016-Ohio-4573.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    CHAMPAIGN COUNTY

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :   C.A. CASE NO. 2015-CA-21
                                                  :
 v.                                               :   T.C. NO. 14CR267
                                                  :
 MICHAELIAN A. BROWN                              :   (Criminal appeal from
                                                  :    Common Pleas Court)
         Defendant-Appellant                      :
                                                  :

                                             ...........

                                            OPINION

                             Rendered on the 24th day of June, 2016.

                                             ...........

JANE A. NAPIER, Atty, Reg. No. 0061426, Assistant Prosecuting Attorney, 200 N. Main
Street, Urbana, Ohio 43078
       Attorney for Plaintiff-Appellee

V. GAYLE MILLER, Atty. Reg. No. 0091528, 724 Clifton Drive, P. O. Box 10124, Dayton,
Ohio 45402
      Attorney for Defendant-Appellant

                                            .............

HALL, J.

        {¶ 1} Michaelian Brown appeals from his convictions for trafficking in cocaine.
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Finding no error, we affirm.

                                       I. Background

       {¶ 2} Brown was indicted on three counts of trafficking in cocaine, each a violation

of R.C. 2925.03(A)(1) and (C)(4)(a) and each a fifth-degree felony. At a jury trial, the state

presented the testimony of four witnesses. A confidential informant testified that three

times in 2014 (on January 15, January 30, and March 6) he made controlled buys of a

gram-and-a-half to two grams of cocaine from Brown, in Brown’s house, in cooperation

with the Urbana Police Division. The detective from the Investigation Division who worked

with the informant testified generally about how controlled drug buys are conducted and

specifically about the buys made from Brown. And the supervisor of the Investigation

Division testified about the investigation and controlled buys in this case. Finally, a

forensic scientist from the Ohio Bureau of Criminal Investigation testified that what the

informant received from Brown in each transaction was in fact cocaine. The defense did

not call any witnesses or present any other evidence. The jury returned verdicts of guilty

on all three counts, after deliberating for just over an hour.

       {¶ 3} The trial court sentenced Brown to three 10-month prison terms and ordered

him to serve the terms consecutively. The court also ordered Brown to pay court costs

and to pay the fees and expenses of his court-appointed attorney and imposed a total

fine of $750.

       {¶ 4} Brown appealed.

                                        II. Analysis

       {¶ 5} Brown presents two assignments of error for our review. The first concerns

the length of time that the jury deliberated, and the second challenges the trial court’s
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order that Brown serve the imposed sentences consecutively.

                     A. The length of time that the jury deliberated

       {¶ 6} The first assignment of error alleges that the trial court erred by accepting the

jury’s verdicts when the jury had deliberated for only slightly more than an hour. Brown

contends that the court should have had the jury reconsider the case.

       {¶ 7} The length of time that a jury deliberates is in the discretion of the trial court.

Val Decker Packing Co. v. Treon, 88 Ohio App. 479, 489, 97 N.E.2d 696 (2d Dist.1950).

“ ‘[T]he trial court may, in its discretion, cause the jury to reconsider the case if their

decision is so hasty as to indicate a flippant disregard of their duties.’ ” Id., quoting 64

Corpus Juris, Section 808, at 1019.

       {¶ 8} Here, Brown did not ask the trial court to have the jury reconsider the case,

nor did he raise any objection to the jury’s verdict in the trial court, so plain-error review

applies. See State v. Obermiller, Slip Opinion No. 2016-Ohio-1594, ¶ 62 (“[W]hen a

defendant has not raised an objection at trial, plain-error review applies.”). “Plain errors

or defects affecting substantial rights may be noticed although they were not brought to

the attention of the court.” Crim.R. 52(B). Accordingly, “[t]o prevail under the plain-error

standard, a defendant must show that an error occurred, that it was obvious, and that it

affected his substantial rights.” (Citation omitted.) Obermiller at ¶ 62.

       {¶ 9} “ ‘[T]he verdict should be the result of sound judgment, dispassionate

consideration, and conscientions [sic] reflection * * *.’ ” Val Decker at 489, quoting 64

Corpus Juris, Section 808, at 1019. “Brief deliberation, by itself, does not show that the

jury failed to give full, conscientious or impartial consideration to the evidence.” Wilburn

v. Eastman Kodak Co., 180 F.3d 475, 476 (2d Cir.1999), citing Ahern v. Scholz, 85 F.3d
                                                                                                -4-

774, 785-786 (1st Cir.1996); Paoletto v. Beech Aircraft Corp., 464 F.2d 976, 983 (3d

Cir.1972); Marx v. Hartford Accident and Indem. Co., 321 F.2d 70, 71 (5th Cir.1963);

Segars v. Atlantic Coast Line R.R. Co., 286 F.2d 767, 770 (4th Cir.1961). “There is no

statutory provision prescribing the length of time a jury shall deliberate before reaching a

verdict.” Val Decker at 489. See also Merkl v. Seibert, 1st Dist. Hamilton No. C-080973,

2009-Ohio-5473, ¶ 50 (“There is no prescribed time that a jury must deliberate.”); Wilburn

at 476 (“A jury is not required to deliberate for any set length of time.”). “ ‘[W]here the law

does not positively prescribe the length of time a jury shall consider their verdict, they may

render a valid verdict without retiring, or on very brief deliberation after retiring * * *.’ ” Val

Decker at 489, quoting 64 Corpus Juris, Section 808, at 1019.

        {¶ 10} In this case, the evidence that the state presented against Brown is

uncomplicated and straight forward. An informant testified that he made three controlled

buys of cocaine from Brown. Two police officers testified about how the buys were

conducted. And a forensic scientist testified that what Brown sold the informant was

cocaine. Brown presented no evidence. The entire trial—empaneling the jury, opening

and closing statements, jury instructions—took just over a day.

        {¶ 11} Given the evidence presented, and the absence of anything in the record

suggesting a problem, a good reason to think that the jury disregarded its duties is far

from obvious. Therefore the trial court did not err by not having the jury reconsider the

case.

        {¶ 12} The first assignment of error is overruled.

                                 B. Consecutive sentences

        {¶ 13} The second assignment of error alleges that the trial court erred by ordering
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Brown to serve his sentences consecutively. Under R.C. 2953.08(G)(2), “an appellate

court may vacate or modify a felony sentence on appeal only if it determines by clear and

convincing evidence that the record does not support the trial court’s findings under

relevant statutes or that the sentence is otherwise contrary to law.” State v. Marcum, Slip

Opinion No. 2016-Ohio-1002, ¶ 1. “Clear and convincing evidence is that measure or

degree of proof which is more than a mere ‘preponderance of the evidence,’ but not to

the extent of such certainty as is required ‘beyond a reasonable doubt’ in criminal cases,

and which will produce in the mind of the trier of facts a firm belief or conviction as to the

facts sought to be established.” Id. at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469,

120 N.E.2d 118 (1954), paragraph three of the syllabus.

       {¶ 14} The relevant statute here, R.C. 2929.14, allows a sentencing court to order

consecutive sentences if the court finds (1) that the consecutive service is necessary to

protect the public from future crime or to punish the offender, (2) that consecutive

sentences are not disproportionate to the seriousness of the offender’s conduct and to

the danger that he poses to the public, and (3) that the offender’s history of criminal

conduct demonstrates that consecutive sentences are necessary to protect the public

from future crime by him. R.C. 2929.14(C)(4)(c).

       {¶ 15} The trial court here found that before committing the offenses in this case

Brown had not committed a criminal act during the previous five years. But the court found

that Brown does have a criminal record. He was adjudicated a juvenile delinquent, and

after his adjudication, the court found, Brown was not rehabilitated to a satisfactory

degree. While he has no prior adult drug convictions, as a juvenile he was convicted of

possessing Valium. As an adult, Brown has been convicted for non-drug crimes—burglary
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in 1998, for which he served time in prison, and OMVI in 2001. The trial court found that

Brown has not responded favorably to the sanctions imposed for his past criminal

convictions.

      {¶ 16} With respect to the offenses in this case, the trial court found that by selling

drugs to another Brown encouraged the buyer to engage in criminal behavior by reselling

the drugs or by using them. The court also found that the informant had been harassed

because he cooperated with police. The court stressed that it was not saying that Brown

was directly involved with the harassment. Rather, said the court, the fact that the

harassment occurred showed the seriousness of Brown’s criminal conduct.

      {¶ 17} As to consecutive sentences, the court found that consecutive sentences

are not disproportionate to the seriousness of the conduct and the danger that Brown

poses to the public, citing “the repetitive nature of the criminal conduct, as well as the

location in the residential neighborhood, and the type of offense committed.” (Sentencing

Tr. 28). Although the court found that Brown did not commit the worst form of the offense,

because no one was hurt and because of the time of day that the offenses occurred

(afternoon or early evening), it found that consecutive sentences are necessary to protect

the public from future crime by Brown, because the drug sales were indiscriminate and

because of his history of criminal conduct.

      {¶ 18} Brown contends that consecutive sentences are not appropriate because

he did not commit the worst form of the offense and no one was harmed. These are only

factors to consider, though; they are not dispositive. We cannot modify or vacate Brown’s

sentence unless we clearly and convincingly find that the record does not support it. Our

review of the record reveals sufficient facts to support Brown’s sentence.
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      {¶ 19} The second assignment of error is overruled.

                                   III. Conclusion

      {¶ 20} We have overruled each of the assignments of error presented. The trial

court’s judgment is affirmed.

                                    ..........

DONOVAN, P.J. and WELBAUM, J., concur.



Copies mailed to:

Jane A. Napier
V. Gayle Miller
Hon. Nick A. Selvaggio
