[Cite as State v. Brooks, 2020-Ohio-3997.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                  :   JUDGES:
                                                :
                                                :   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                      :   Hon. John W. Wise, J.
                                                :   Hon. Patricia A. Delaney, J.
 -vs-                                           :
                                                :   Case No. 19CA70
                                                :
 CALVIN BROOKS JR.                              :
                                                :
                                                :
        Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Richland County Court
                                                    of Common Pleas, Case No. 2018-CR-
                                                    0556N



JUDGMENT:                                           AFFIRMED




DATE OF JUDGMENT ENTRY:                             August 5, 2020




APPEARANCES:

 For Plaintiff-Appellee:                            For Defendant-Appellant:

 GARY BISHOP                                        RANDALL E. FRY
 RICHLAND CO. PROSECUTOR                            10 West Newlon Place
 JOSEPH C. SNYDER                                   Mansfield, OH 44902
 38 South Park St.
 Mansfield, OH 44902
Richland County, Case No. 19CA70                                                         2


Delaney, J.

       {¶1} Appellant Calvin Brooks Jr. appeals from the July 2, 2019 Sentencing Entry

of the Richland County Court of Common Pleas. Appellee is the state of Ohio.

                         FACTS AND PROCEDURAL HISTORY

       {¶2} The following facts are adduced from the record of appellant’s jury trial.

       {¶3} On June 30, 2017, Jane Doe and John Roe lived together with their baby

in an apartment on Blymyer Avenue in Mansfield. Jane and John both acknowledge that

they have mental challenges. The two were able to live independently at this time,

however, and were in a long-term relationship.

       {¶4} Jane, John, and their baby lived in Apartment 38, across the hall from

Apartment 39. A number of people lived in or stayed regularly at Apartment 39: appellant,

co-defendant Hillary Brooks (“Hillary”), Brittnianna Walker (“Walker”), Rashaud Morton-

Bonham (“Rashaud”), and Hillary Brooks’ mother Tracy Crawford, known to residents of

the Blymyer apartments as “Mama T.” “Mama T” was the property manager of the

Blymyer apartment building.

       {¶5} John Roe considered the group in Apartment 39 to be his friends and

frequently “hung out” in the apartment. Jane Doe, however, was more wary and usually

stayed in her own apartment with her child. A few days before this incident, Hillary Brooks

and Brittnianna Walker had taunted Jane as she walked outside the apartment building,

insulting her and throwing cans at her head. The women were angered because Jane

did not respond to their taunts.

       {¶6} On June 30, 2017, starting around noon, John was drinking with appellant,

Hillary, Walker, and Rashaud in Apartment 39; the five drank from a bottle of liquor John
Richland County, Case No. 19CA70                                                        3


supplied. As they drank, Hillary and Walker asked John why Jane never came over and

why she didn’t like them. The women became increasingly agitated, deciding that they

wanted to beat up Jane for ignoring them. John didn’t want to be part of the conversation

anymore because they were “dogging on” Jane, and got up to return to Apartment 38.

Appellant and Rashaud told John that if he tried to prevent the women from attacking

Jane or intervened in the fight, the men would attack him. John grabbed the liquor bottle

and ran out of the apartment, across the hall.

       {¶7} Appellant and Rashaud prevented John from closing the apartment door;

the two pushed the door open and struck John in the head. Jane was inside holding the

baby, and John saw Rashaud punch her. Hillary and Walker also pushed their way into

Apartment 38. Appellant and Rashaud kicked and punched John, and Hillary and Walker

hit and punched Jane. John remembered little of the first beating because he was struck

in the head and face severely. Eventually the four intruders left Apartment 38 and John

closed and locked the door. He was covered with blood and got into the shower to clean

himself.

       {¶8} John testified he doesn’t remember anything from the moment he stepped

into the shower until sometime later when he woke up on a stretcher in an ambulance.

       {¶9} Jane filled in the blanks. She testified that John left their apartment around

noon to drink across the hall. Several hours later he returned, but appellant and Rashaud

were also trying to enter the apartment. Jane opened the door attempting to let only John

in, but appellant and Rashaud pushed their way in. They began hitting and kicking John.

       {¶10} At first Jane ran into the kitchen with the baby and placed the baby in a

Pack-N-Play. Hillary and Walker then entered the apartment, and Jane asked what was
Richland County, Case No. 19CA70                                                          4


going on. The two women said it was none of her business and began to beat Jane.

Eventually the four left the apartment and Jane closed and locked the door.

            {¶11} Jane went to the shower to assist John and he told her to call 911. Jane

said she couldn’t because she didn’t have any minutes left on her phone, not realizing the

phone would still permit her to make an emergency call. Jane was afraid to leave the

apartment to seek help because she assumed the four intruders were outside.

            {¶12} Five or ten minutes later, the group returned, this time breaking down the

door to Apartment 38. Appellant and Rashaud battered the door down and it fell on John,

knocking him unconscious.          Appellant and Rashaud continued to beat John.       Jane

recorded audio of the assault with her phone. Then Hillary and Walker returned, yelling

at Jane that she “should be protecting her man.” Hillary and Walker again began to beat

Jane. Appellee played the audio recordings of the second round of entries and beatings

at trial.

            {¶13} In the meantime, a downstairs neighbor heard arguing and a “thud” loud

enough and strong enough to shake the walls of their apartment.1 The neighbor heard

screaming for 10 or 15 minutes.           The neighbor was used to disturbances at the

apartments and usually did not get involved, but knew that a baby lived upstairs.

Concerned for the baby, the neighbor cautiously crept upstairs, spotting blood on the wall

of the hallway and observing the door knocked off the hinges of Apartment 38. They

peered into the apartment just long enough to see John on the floor being beaten viciously

by two men. The neighbor also saw Hillary and Walker inside the apartment, but did not




1There is only one neighbor witness but that person is referred to by the collective
genderless pronoun “they” to protect their identity.
Richland County, Case No. 19CA70                                                         5


see Jane. They heard Jane screaming, however, and realized Hillary and Walker were

beating her.

       {¶14} The neighbor ran downstairs and called a relative who works for law

enforcement. The relative called 911 and reported the ongoing beatings. The neighbor

left the building and encountered “Mama T” outside, who asked what all the screaming

was about. The neighbor told her police were on their way, and testified “Mama T” went

upstairs and warned the four assailants that police were on the way. The four left the

building before police arrived. The neighbor observed John transported by paramedics

on a stretcher and realized he was badly hurt. The neighbor provided a statement to

police despite not wanting to be involved, stating that “Mama T” cleaned up blood

throughout the hallway.

       {¶15} The responding police officer testified that upon arrival at Apartment 38, the

door fell to the floor when he knocked. He found the door broken off the hinges and blood

throughout the apartment.      He observed Jane and John inside the apartment, both

injured but John more seriously than Jane. He observed bruising, swelling, and bleeding

from both victims and a squad transported them to the hospital. After speaking separately

to Jane, John, and the neighbor, police developed a list of four suspects.

       {¶16} Detective William Bushong of the Mansfield Police Department followed up

with investigating the case. He looked for the four suspects but eventually spoke only to

Hillary in February 2018. Bushong showed Jane and John photo lineups containing

photos of the four suspects and both separately identified the assailants.

       {¶17} Appellant was charged by indictment with two counts of aggravated

burglary pursuant to R.C. 2911.11(A)(1), both felonies of the first degree [Counts I and
Richland County, Case No. 19CA70                                                        6


II], and one count of felonious assault pursuant to R.C. 2903.11(A)(1), a felony of the

second degree [Count III]. Over defense objection, the trials of Hillary Brooks and

appellant were joined.

       {¶18} The matter proceeded to joint trial by jury. Appellant moved for a judgment

of acquittal pursuant to Crim.R. 29(A) at the close of appellee’s evidence and the motion

was overruled. Appellant was found guilty as charged.

       {¶19} The trial court sentenced appellant to an aggregate prison term of 18 years,

with 9 years each upon Counts I and II to be served consecutively, concurrent with 5

years upon Count III. In the sentencing entry of July 2, 2019, the trial court noted

consecutive sentences are necessary to protect the public from future crime or to punish

the offender, and consecutive sentences are not disproportionate to the seriousness of

the offender’s conduct and to the danger the offender poses to the public, and because

at least two of the multiple offenses were committed as part of one or more courses of

conduct, and the harm caused by two or more of the multiple offenses so committed was

so great or unusual that no single prison term for any of the offenses committed as part

of any of the courses of conduct adequately reflects the seriousness of the offender’s

conduct; and that the offender’s history of criminal conduct demonstrates that consecutive

sentences are necessary to protect the public from future crime by the offender.

       {¶20} Appellant now appeals from the trial court’s July 2, 2019 Sentencing Entry.

       {¶21} Appellant raises two assignments of error:

                              ASSIGNMENTS OF ERROR

       {¶22} “I. THE EVIDENCE IN THIS CASE WAS INSUFFICIENT AS A MATTER

OF LAW TO SUPPORT A CONVICTION ON COUNT II OF THE INDICTMENT AND AS
Richland County, Case No. 19CA70                                                          7


A RESULT, THE APPELLANT’S RIGHTS AS PROTECTED BY ARTICLE I, SECTION

16 OF THE OHIO CONSTITUTION AND THE FIFTH AMENDMENT OF THE UNITED

STATES CONSTITUTION WERE VIOLATED.”

       {¶23} “II. THE TRIAL COURT SENTENCE OF CONSECUTIVE SENTENCES IS

CONTRARY TO LAW AND IS NOT SUPPORTED BY THE EVIDENCE.”

                                        ANALYSIS

                                             I.

       {¶24} In his first assignment of error, appellant challenges his conviction only

upon Count II, asserting that the conviction is against the manifest weight and sufficiency

of the evidence. We disagree.

       {¶25} The legal concepts of sufficiency of the evidence and weight of the evidence

are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380,

1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review for

a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio St.3d

259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio Supreme

Court held, “An appellate court's function when reviewing the sufficiency of the evidence

to support a criminal conviction is to examine the evidence admitted at trial to determine

whether such evidence, if believed, would convince the average mind of the defendant's

guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the

evidence in a light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime proven beyond a reasonable doubt.”

       {¶26} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the
Richland County, Case No. 19CA70                                                              8


entire record, weighs the evidence and all reasonable inferences, considers the credibility

of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly

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

be overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.

Reversing a conviction as being against the manifest weight of the evidence and ordering

a new trial should be reserved for only the “exceptional case in which the evidence weighs

heavily against the conviction.” Id.

       {¶27} In Count II, appellant was convicted of one count of aggravated burglary

pursuant to R.C. 2911.11(A)(1), which states: “No person, by force, stealth, or deception,

shall trespass in an occupied structure or in a separately secured or separately occupied

portion of an occupied structure, when another person other than an accomplice of the

offender is present, with purpose to commit in the structure * * * any criminal offense, if *

* * [t]he offender inflicts, or attempts or threatens to inflict physical harm on another.”

       {¶28} Appellant concedes his convictions upon Counts I and III, acknowledging

that he forced his way into Apartment 38 and inflicted serious physical harm upon John

Roe. He argues, though, there is insufficient evidence to support appellee’s allegation

that he entered the apartment to assault John a second time. Appellant states the only

witness who testified he entered the apartment a second time was Jane Doe, and her

testimony alone is insufficient to prove his guilt beyond a reasonable doubt.

       {¶29} We first note that the testimony of one witness, if believed by the factfinder,

is enough to support a conviction. See, State v. Dunn, 5th Dist. Stark No. 2008–CA–

00137, 2009–Ohio–1688, ¶ 133. Jane Doe testified appellant entered the apartment at

least one more time after the initial burglary and assault. Jane Doe’s testimony was
Richland County, Case No. 19CA70                                                             9


buttressed by appellee’s admission of the audio recording from Jane’s phone. Jane

testified she didn’t start recording until after the first burglary. At trial she was unable to

identify each of the two male voices on the recording. The jury was free to listen to the

tapes and arrive at its own decision.

       {¶30} We also disagree with appellant’s contention that Jane Doe was the only

witness to the second entry into the apartment. The neighbor witnessed the ongoing

assault after the second entry into the apartment, able to see into Apartment 38 because

the door was broken down. After the first entry and assault, Jane and John were still able

to close the door and lock it. The neighbor testified to observing two males attacking

John Roe inside the apartment subsequent to the first entry and attack.

       {¶31} Appellant also points to minor inconsistencies in Jane Doe’s account. We

defer to the trier of fact as to the weight to be given the evidence and the credibility of the

witnesses. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), at paragraph one

of the syllabus. The jury as the trier of fact was free to accept or reject any and all of the

evidence offered by the parties and assess the witness's credibility. “While the trier of fact

may take note of the inconsistencies and resolve or discount them accordingly * * * such

inconsistencies do not render defendant's conviction against the manifest weight or

sufficiency of the evidence.” State v. Johnson, 2015-Ohio-3113, 41 N.E.3d 104, ¶ 61 (5th

Dist.), citing State v. Nivens, 10th Dist. Franklin No. 95APA09-1236, 1996 WL 284714

(May 28, 1996). The jury need not believe all of a witness' testimony, but may accept only

portions of it as true. Id.

       {¶32} Any inconsistencies in the evidence were for the trial court to resolve. State

v. Dotson, 5th Dist. Stark No. 2016CA00199, 2017-Ohio-5565, ¶ 49. “The weight of the
Richland County, Case No. 19CA70                                                          10


evidence concerns the inclination of the greater amount of credible evidence offered in a

trial to support one side of the issue rather than the other.” State v. Delevie, 5th Dist.

Licking No. 18-CA-111, 2019-Ohio-3563, ¶ 30, appeal not allowed, 158 Ohio St.3d 1410,

2020-Ohio-518, 139 N.E.3d 927, citing State v. Brindley, 10th Dist. Franklin No. 01AP-

926, 2002-Ohio-2425, 2002 WL 1013033, ¶ 16. In the instant case, appellee’s evidence

was compelling, and the jury was free to weigh the evidence accordingly.

       {¶33} We find the trial court did not clearly lose its way and create a manifest

miscarriage of justice requiring that appellant's conviction upon Count II be reversed and

a new trial ordered. Appellant's conviction is not against the manifest weight or sufficiency

of the evidence. His first assignment of error is overruled.

                                             II.

       {¶34} In his second assignment of error, appellant summarily argues his

consecutive sentences are not supported by the record. We disagree.

       {¶35} Appellant was convicted upon two counts of aggravated burglary in Counts

I and II, both felonies of the first degree.2 The trial court imposed consecutive prison

terms of 9 years each. “[A]ppellate courts must adhere to the plain language of R.C.

2953.08(G)(2).” State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231,

¶ 7. An appellate court may only modify or vacate a sentence if it finds by clear and

convincing evidence that the record does not support the sentencing court's

decision. Id. at ¶ 23. Clear and convincing evidence is that “‘which will produce in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be




2The trial court found that appellant’s conviction upon Count III, felonious assault, merged
for purposes of sentencing.
Richland County, Case No. 19CA70                                                         11


established.’” State v. Silknitter, 3rd Dist. Union No. 14–16–07, 2017–Ohio–327, ¶ 7,

citing Marcum, supra. Clear and convincing evidence is that measure or degree of proof

which is more than a mere “preponderance of the evidence,” but does not require the

certainty of “beyond a reasonable doubt.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d

118 (1954), paragraph three of the syllabus.

       {¶36} In the instant case, appellant argues summarily that “if this Court reviews

the entire record, it will find that indeed consecutive sentences are not support[ed] by the

record [and are therefore] contrary to law.” Appellant explicitly concedes the trial court

made the proper findings; instead, he disagrees with the weight afforded to those findings.

“In order to impose consecutive terms of imprisonment, a trial court is required to make

the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate

its findings into its sentencing entry, but it has no obligation to state reasons to support

its findings.” State v. Bonnell, 140 Ohio St.3d 209, 16 N.E.3d 659, 2014-Ohio-3177,

syllabus.

       {¶37} In Ohio, there is a statutory presumption in favor of concurrent sentences

for most felony offenses. R.C. 2929.41(A). The trial court may overcome this presumption

by making the statutory, enumerated findings set forth in R.C. 2929.14(C)(4). State v.

Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 23. R.C. 2929.14(C)(4)

concerns the imposition of consecutive sentences and provides:

                     If multiple prison terms are imposed on an offender for

              convictions of multiple offenses, the court may require the offender

              to serve the prison terms consecutively if the court finds that the

              consecutive service is necessary to protect the public from future
Richland County, Case No. 19CA70                                                      12


             crime or to punish the offender and that consecutive sentences are

             not disproportionate to the seriousness of the offender's conduct and

             to the danger the offender poses to the public, and if the court also

             finds any of the following:

                    (a) The offender committed one or more of the multiple

             offenses while the offender was awaiting trial or sentencing, was

             under a sanction imposed pursuant to section 2929.16, 2929.17,

             or 2929.18 of the Revised Code, or was under post-release control

             for a prior offense.

                    (b) At least two of the multiple offenses were committed as

             part of one or more courses of conduct, and the harm caused by two

             or more of the multiple offenses so committed was so great or

             unusual that no single prison term for any of the offenses committed

             as part of any of the courses of conduct adequately reflects the

             seriousness of the offender's conduct.

                    (c) The offender's history of criminal conduct demonstrates

             that consecutive sentences are necessary to protect the public from

             future crime by the offender.

      {¶38} In this case, the record does establish, and appellant admits, that the trial

court made the findings required by R.C. 2929.14(C)(4) at the time it imposed consecutive

sentences. Upon the record at sentencing and in the judgment entry, the trial court found

that consecutive sentences are necessary to protect the public from future crime or to

punish the offender; are not disproportionate to appellant's conduct and to the danger he
Richland County, Case No. 19CA70                                                         13


poses to the public; and at least two of the multiple offenses were committed as part of

one or more courses of conduct, and the harm caused by two or more of the offenses

was so great or unusual that no single prison term for any of the offenses committed as

part of any of the courses of conduct would adequately reflect the seriousness of

appellant's conduct.

       {¶39} Appellant’s argument overlooks the trial court’s specific findings in the

record. Upon imposing consecutive prison terms, the trial court noted appellant served

two prison terms and has a lengthy record of misdemeanor and drug convictions. He

demonstrated absolutely no remorse in the instant case in which he took advantage of

the victims’ disabilities and John Roe’s misunderstanding that they were “friends.” This

relationship, and the victims’ disabilities, facilitated the offenses.   Appellant caused

serious physical harm to John Roe, inflicting injuries including a brain bleed, a shattered

nose, and a broken jaw which required Roe to spend three days hospitalized in an I.C.U.

Finally, the trial court expressed its disdain for appellant’s actions in bludgeoning John

Roe in front of his child.

       {¶40} Based on our review, we find that the record demonstrates that the trial

court made the requisite findings and the sentence was within the statutory range.

Moreover, the record reveals that the trial court properly considered the statutory

purposes and factors of felony sentencing, and the decision is supported by clear and

convincing evidence. Accordingly, we find that the trial court did not err in the imposition

of appellant's prison sentence, including imposition of consecutive terms, and did not fail

to consider the statutory factors.

       {¶41} Appellant’s second assignment of error is overruled.
Richland County, Case No. 19CA70                                                   14


                                   CONCLUSION

      {¶42} Appellant’s two assignments of error are overruled and the judgment of the

Richland County Court of Common Pleas is affirmed.

By: Delaney, J.,

Hoffman, P.J. and

Wise, John, J., concur.
