[Cite as State v. Brabson, 2014-Ohio-5277.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 100969




                                              STATE OF OHIO

                                                         PLAINTIFF-APPELLEE

                                                   vs.

                                          DAVID J. BRABSON

                                                         DEFENDANT-APPELLANT




                                               JUDGMENT:
                                                AFFIRMED




                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-13-571514-A

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

        RELEASED AND JOURNALIZED: November 26, 2014
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender

BY:    Paul Kuzmins
       Erika Cunliffe
Assistant Public Defenders
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Steven N. Szelagiewicz
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:

       {¶1} Defendant-appellant, David Brabson (“Brabson”), appeals his convictions and

sentence. We find no merit to the appeal, and affirm.

       {¶2} Brabson was charged with one count of kidnaping in violation of R.C.

2905.01(A)(3), one count of felonious assault, in violation of R.C. 2903.11(A)(1), and one count

of felonious assault, in violation of R.C. 2903.11(A)(2). All the charges included notice of prior

conviction and repeat violent offender specifications.

       {¶3} The victim, Candace White (“White”), testified at trial that, at the time of the events

giving rise to this case, she was living with Brabson and her children in an apartment in

Cleveland. On January 19, 2013, Brabson asked to borrow White’s car, and when White

refused the two began arguing in a store parking lot. When White exited the car to enter the

store, Brabson sat himself in the driver’s seat and refused to move when White returned. White

reported Brabson’s conduct to police, who happened to be in the parking lot, and they ordered

Brabson out of the car. White subsequently drove to her sister’s house.

       {¶4} White returned home at approximately 1:00 a.m., and another argument ensued.

Brabson demanded the car keys and asked White why she went to the police. White replied that

she did not want to talk about it, and Brabson became violent. White explained:

       [A]fter I said that is when he stomped my foot and then he grabbed me. He was
       trying to choke me but he was holding my neck down like this. And he had my
       body in between his legs and he squeezed my body to the fact that I couldn’t
       breathe anymore. And then he was pulling my hair and his foot in the back of my
       neck pushing down while he pulling my hair.

       * * * [O]nce he let me go from that he asked me again * * * and I ignored him.
       That’s when he took the belt off and started beating me with the belt.
When the beating stopped, White fled from the house and ran down the street. Brabson grabbed

her and dragged her back to the apartment.

       {¶5} Shortly thereafter, police officers started banging on the front door.       Paisley

Calhoun (“Calhoun”), who lived in the apartment above White’s residence in a two-family

duplex, had heard the screaming and called the police. By the time the police arrived, White

was in the bathroom washing her face. Brabson instructed White not to answer the door.

According to White, Brabson stated, “I’m not going to jail,” and he refused to let her out of the

bathroom until after the police had gone. White further testified: “I would have screamed or

something but I was afraid.”

       {¶6} White reported the incident to police the next day. She identified belt shaped

bruises on her face, neck, and arm, and police took photographs of her injuries, which were

admitted into evidence at trial. White testified that without makeup, marks were still visible on

her face. In the days following the incident, Brabson gave White letters using a fake name but

she recognized his handwriting. In the letters, Brabson referenced their relationship and stated

that he used a fake name to get around a protective order that prohibited him from contacting

White. Brabson also admitted in the letters that he should not have put his hands on her and that

she did not need to proceed with the case against him.

       {¶7} Detective Jayson Young (“Young”) testified that he interviewed Brabson as part of

his investigation. Brabson told Young that the argument was verbal, and he had no idea how

White got the marks on her face, arm, and neck. He admitted that the police ordered him out of

White’s car and that he waited with White in the bathroom while the police banged on their front

door. He claimed they did not open the door because they were both wrong for arguing. Young

also observed White’s injuries and took photographs.
       {¶8} At the conclusion of the trial, a jury found Brabson guilty of kidnaping in Count 1,

in violation of R.C. 2905.01(A)(3), and the lesser included offenses of attempted felonious

assault, in violation of R.C. 2903.11(A)(1) and 2923.02, and assault, in violation of R.C.

2903.13, in Count 2. In Count 3, the jury found Brabson not guilty of felonious assault under

R.C. 2903.11(A)(2). The court found Brabson guilty of the notice of prior conviction and repeat

violent offender specifications in Count 1.     The court sentenced Brabson to an aggregate

six-year prison term and a mandatory five years of postrelease control. Brabson now appeals

and raises six assignments of error.

                                   Attempted Felonious Assault

       {¶9} In the first assignment of error, Brabson argues his attempted felonious assault

conviction should be reversed because it is not a cognizable offense under R.C. 2903.11(A)(2)

and 2923.02. He contends that because the term “attempt” is already in the felonious assault

statute, the attempt statute does not apply.

       {¶10} However, in Count 2 of the indictment, Brabson was charged with felonious

assault in violation of R.C. 2903.11(A)(1), not 2903.11(A)(2). R.C. 2903.11(A)(1) states that

“[n]o person shall knowingly * * * [c]ause serious physical harm to another.” By contrast, R.C.

2903.11(A)(2) states that “[n]o person shall knowingly * * * [c]ause or attempt to cause

physical harm to another” with a deadly weapon. Thus, “attempt” is not an element of R.C.

2903.11(A)(1).

       {¶11} The jury found Brabson not guilty of felonious assault with a deadly weapon, in

violation of R.C. 2903.11(A)(2). It found him guilty of attempted felonious assault pursuant to

R.C. 2903.11(A)(1), which does not include the “attempt” element, and R.C. 2923.02, the

attempt statute. R.C. 2923.02(A) states that “[n]o person, purposely or knowingly, and when
purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in

conduct that, if successful, would constitute or result in the offense.” Since R.C. 2903.11(A)(1)

does not require proof of an attempt to commit serious physical harm, the jury could find

Brabson guilty of the lesser included offense of attempted felonious assault pursuant to R.C.

2923.02(A).

       {¶12} Therefore, the first assignment of error is overruled.

                            Sufficient Evidence of Deadly Weapon

       {¶13} In the second assignment of error, Brabson argues there is insufficient evidence to

sustain his felonious assault conviction. He contends that his belt was not a deadly weapon

within the meaning of R.C. 2923.11(A). However, as previously stated, the jury found Brabson

not guilty of felonious assault with a deadly weapon in violation R.C. 2923.11(A)(2). The jury

apparently agreed there was insufficient evidence of a deadly weapon.

       {¶14} The jury found Brabson guilty of attempted felonious assault, in violation of R.C.

2903.11(A)(1) and 2923.02(A). Proof of a deadly weapon is not an element of this offense.

Therefore, whether Brabson used a deadly weapon is not relevant to his attempted felonious

conviction under R.C. 2903.11(A)(1).

       {¶15} The second assignment of error is overruled.

                                    Evidence of Kidnaping

       {¶16} In the third assignment of error, Brabson argues there was insufficient evidence to

sustain his kidnaping conviction. He contends the state failed to present evidence that he

restrained White’s liberty “with purpose to terrorize or inflict serious physical harm on the

victim,” as required by R.C. 2905.01(A)(3). In the fourth assignment of error, Brabson argues

his kidnaping conviction is against the manifest weight of the evidence for the same reason.
Although the terms “sufficiency” and “weight” of the evidence are “quantitatively and

qualitatively different,” we address these issues together because they are closely related, while

applying the distinct standards of review to Brabson’s arguments. State v. Thompkins, 78 Ohio

St.3d 380, 678 N.E.2d 541 (1997).

       {¶17} The test for sufficiency requires a determination of whether the prosecution met its

burden of production at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598,

¶ 12. 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.       State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus.

       {¶18} In contrast to sufficiency, “weight of the evidence involves the inclination of the

greater amount of credible evidence.” Thompkins at 387. While “sufficiency of the evidence is

a test of adequacy as to whether the evidence is legally sufficient to support a verdict as a matter

of law, * * * weight of the evidence addresses the evidence’s effect of inducing belief.” State v.

Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins at

386-387. “In other words, a reviewing court asks whose evidence is more persuasive — the

state’s or the defendant’s?” Id. The reviewing court must consider all the evidence in the

record, the reasonable inferences, and the credibility of the witnesses to determine “‘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 reversed and a new trial ordered.’” Thompkins

at 387, quoting State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983).

       {¶19} Brabson was convicted of kidnaping, in violation of R.C. 2905.01(A)(3). R.C.

2905.01(A)(3) states, in relevant part, that “[n]o person, by force, threat, or deception * * * shall
remove another from the place where the other person is found or restrain the liberty of the other

person * * * “[t]o terrorize, or to inflict serious physical harm on the victim.” R.C. 2901.22(A)

defines “purposefully,” as follows:

        A person acts purposely when it is his specific intention to cause a certain result,
        or, when the gist of the offense is a prohibition against conduct of a certain nature,
        regardless of what the offender intends to accomplish thereby, it is his specific
        intention to engage in conduct of that nature.

        {¶20} White testified that Brabson restrained her by squeezing her in between his legs

and also by holding her neck to the floor with his foot while pulling her hair. Brabson argues

that because these acts of restraint also constituted acts of assault, and the trial court determined

that Brabson’s kidnaping conviction does not merge with the assault conviction, there was no

evidence of kidnaping. He also focuses on the time Brabson restrained White in the bathroom

and argues there was no evidence that Brabson intended to harm or terrorize White during that

time.

        {¶21} However, there were other acts of restraint and movement that constituted

kidnaping that were not accompanied by the specific acts of assault. Throughout this entire

incident, Brabson sought to control White with the threat of violence, and White attempted to

escape because she was afraid that Brabson would cause her further physical injury. In other

words, Brabson used terror to maintain control over White. For example, when Brabson hauled

White back into the house against her will, he knew she was frightened and therefore knew he

was terrorizing her by dragging her back to the house where he could continue to injure her.

Indeed, White testified that when the police knocked on the door after Brabson brought her back

to the house, White remained silent instead of screaming for help because she was afraid of
Brabson.    Therefore, there was sufficient evidence of kidnaping in violation of R.C.

2905.01(A)(3).

       {¶22} White’s testimony about this incident was credible, and other witnesses and

photographs corroborated her testimony. Even Brabson admitted to police that he argued with

White but claimed he had no idea how she sustained her injuries. Brabson’s self-serving

statement to police lacks credibility in light of the all the other evidence adduced at trial.

Therefore, Brabson’s kidnaping conviction was also supported by the weight of the evidence.

       {¶23} The third and fourth assignments of error are overruled.

                                       Structural Error

       {¶24} In the fifth assignment of error, Brabson argues the trial court committed structural

error when it amplified the statutory definition of reasonable doubt. He contends the trial

court’s discussion about the meaning of “beyond a reasonable doubt,” diluted its true meaning.

As a result, Brabson argues, he was convicted under a standard that required less proof than the

constitutionally mandated beyond a reasonable doubt standard.

       {¶25} Structural errors are constitutional errors that “defy analysis by ‘harmless error’

standards because they affect the framework in which the trial proceeds, rather than just being

error in the trial process itself.” United States v. Gonzalez-Lopez, 548 U.S. 140, 148, 126 S.Ct.

2557, 165 L.Ed.2d 409 (2006). A structural error permeates the entire conduct of a trial so that

the trial cannot reliably serve its function as a means for determining guilt or innocence.

Arizona v. Fulminante, 499 U.S. 279, 309-310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).

       {¶26} A structural error mandates a finding of “per se prejudice”           and results in

“automatic reversal.” State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917, ¶

20, overruled on other grounds, State v. Horner, 126 Ohio St.3d 466, 2010-Ohio-3830, 935
N.E.2d 26, ¶ 45. Although all structural errors are by nature constitutional errors, not all

constitutional errors are structural.   As a result, some constitutional errors can be deemed

non-prejudicial so long as the error is harmless beyond a reasonable doubt. State v. Payne, 114

Ohio St.3d 502, 505, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 18. It is only in the rarest of cases that

an error is held to be structural, thus requiring an automatic reversal. Washington v. Recuenco,

548 U.S. 212, 218, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006).

       {¶27} The Ohio Supreme Court has cautioned against amplifying the legal definition of

the phrase “beyond a reasonable doubt.” State v. Van Gundy, 64 Ohio St.3d 230, 235, 594

N.E.2d 604 (1992). In Van Gundy, the defendant argued that the trial court’s amplification of

the statutory definition of “reasonable doubt” diluted the requirement that the state prove guilt

beyond a reasonable doubt and thus rendered its charge erroneous and prejudicial. The Supreme

Court held that in determining whether the amplification was prejudicial, the court had to

consider how reasonable jurors would have understood the charge in its entirety. Id.

       {¶28} “An instruction is prejudicial when it is ‘of the type that could mislead the jury into

finding no reasonable doubt when in fact there is some.’” Id., quoting State v. Nabozny, 54 Ohio

St.2d 195, 202, 375 N.E.2d 784 (1978). If, however, the charge, taken as a whole “‘conveyed

the concept of reasonable doubt to the jury,’ then the amplification will not found to be

prejudicial.” Id., quoting Nabozny at paragraph two of the syllabus.

       {¶29} The trial court in Van Gundy charged the jury, in relevant part, as follows:

       The defendant is presumed innocent until his guilt is established beyond a
       reasonable doubt. The defendant must be acquitted of an offense unless the state
       produces evidence which convinces you beyond a reasonable doubt of every
       essential element of the offense charged.

       Reasonable doubt is present when, after you have carefully considered and
       compared all the evidence, you cannot say you are firmly convinced of the truth of
        the charge. Reasonable doubt is a doubt based on reason and common sense.
        Reasonable doubt is not mere possible doubt, because everything relating to
        human affairs, or depending on moral evidence is open to some possible or
        imaginary doubt. Proof beyond a reasonable doubt is proof of such character that
        an ordinary person would be willing to rely and act upon it in the most important
        of his own affairs.

The court then amplified upon this statutory language by instructing:

        If after a full and impartial consideration of all the evidence you are firmly
        convinced of the truth of the charge, the state has proved its case beyond a
        reasonable doubt. If you are not firmly convinced of the truth of the charge, you
        must find the defendant not guilty.

Taken as a whole, the Supreme Court found that the trial court’s instruction was not prejudicial

and correctly conveyed the concept that the state had to prove defendant’s guilt beyond a

reasonable doubt. Id.

        {¶30} Brabson did not object to the jury instructions and therefore waived all but plain

error. Payne, 114 Ohio St.3d at 23, 873 N.E.2d 306, ¶ 23; Crim.R. 52(B). However, we find

no error in the trial court’s charge in this case. During voir dire, the court discussed the concept

of reasonable doubt and explained that reasonable doubt does not require the absence of all

doubt. As an example, the court explained that although we have almost no doubt that the sun

will rise tomorrow, there is a slim possibility that an asteroid may collide with the earth and

knock it out of its regular rotation. This is not likely to happen. One might say it is not

reasonable to believe that would happen. But it is not impossible. Following this discussion,

the court further stated:

        So there’s always some imaginary or possible doubt. And there’s always going
        to be some doubt because you’re depending on what other witnesses are telling
        you. You have to decide whether they’re accurate, whether you believe them.
        So there will always be some doubt.
The trial court also went into a discussion about how television and pop-ups on computer screens

do not reflect the real world. The court apprised the jury not to expect “something you see on

TV.”

       {¶31} The trial court later provided the statutory definition of “reasonable doubt” during

it charge and stated:

       What then is reasonable doubt? The legislature of Ohio defines reasonable doubt
       as follows: Reasonable doubt is present when, after you have carefully considered
       and compared all the evidence, you cannot say you are firmly convinced of the
       truth of the charge. Reasonable doubt is doubt based on reason and common
       sense. Reasonable doubt is not mere possible doubt because everything related to
       human affairs or depending on moral evidence is open to some possible or
       imaginary doubt.

       Proof beyond a reasonable doubt is proof of such character that an ordinary person
       would be willing to rely and act upon it in the most important of his own affairs.

       {¶32} Although the trial court amplified the definition of reasonable doubt, we cannot say

the amplification prejudiced the outcome of the trial and certainly was not a structural error.

The amplification in this case occurred during voir dire and, by itself, would not have provided a

complete definition, and without more, could be misleading. However, in the charge the court

provided the statutory definition of “reasonable doubt” and explained that it was defined by the

state legislature.   The court correctly conveyed the concept that the state must prove the

defendant’s guilt beyond all reasonable doubt.         Therefore, taken as a whole, the court’s

instruction on reasonable doubt was not prejudicial.

       {¶33} It is nevertheless important to heed the Supreme Court’s warning:

       [T]here is always a danger in giving instructions that go beyond the statutory
       definitions. * * * There is inherent difficulty in any attempt to define the
       abstract concept of reasonable doubt and further attempts do not usually result in
       making it any clearer in the minds of the jury.

Van Gundy, 64 Ohio St.3d at 235, 594 N.E.2d 604.
       {¶34} The fifth assignment of error is overruled.

                                          Jury Verdict

       {¶35} In the sixth assignment of error, Brabson argues his kidnaping conviction is void

because the court failed to instruct the jury that they must unanimously agree that all the elements

of kidnaping were proven beyond a reasonable doubt. He contends the jury instructions allowed

him to be convicted by a non-unanimous jury verdict.

       {¶36} The Ohio Supreme Court held that although the jury must be unanimous “as to

guilt for the single crime charged, * * * [u]nanimity is not required, * * * as to the means by

which the crime was committed so long as substantial evidence supports each alternative means.”

 State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995, ¶ 49.

       {¶37} In closing arguments, the state suggested three alternative kidnaping scenarios.

Specifically, the prosecutor explained:

       As far as the kidnaping. * * * Look at the elements. Did he restrain her
       liberty? Yes. He threw her on the bed, he held her down. He dragged her back
       when she ran outside, tried to get away. He blocked the bathroom door so she
       couldn’t get out.

       {¶38} In Gardner, the Ohio Supreme Court distinguished between “alternative means”

and “multiple acts” cases. A case involves “multiple acts” when several acts are alleged, and

any one of the acts could constitute the crime charged. Id. A case involves “alternative means”

when “a single offense may be committed in more than one way.” Id. Although the jury must

be unanimous “as to guilt for the single crime charged, * * * [u]nanimity is not required * * * as

to the means by which the crime was committed so long as substantial evidence supports each

alternative means.” Id. (noting that, in “reviewing an alternative means case, the court must
determine whether a rational trier of fact could have found each means of committing the crime

proved beyond a reasonable doubt”).

       {¶39} The Ohio Supreme Court discussed the issue of juror unanimity with respect to

alternative means of committing rape in State v. McKnight, 107 Ohio St.3d 101,

2005-Ohio-6046, 837 N.E.2d 315.        There, the trial court instructed the jury “to determine

whether McKnight, by force, threat or deception, did remove [the victim] from the place where

she was found or restrain [the victim] of her liberty.” (Emphasis sic.) Id. at ¶ 227. McKnight

argued that the instruction deprived him of a unanimous jury verdict because the jury was

instructed on alternative means for committing kidnaping. The Supreme Court rejected that

argument and concluded the kidnaping instruction was proper “because the alternatives were

given to the jury disjunctively.” Id. at ¶ 228, citing State v. Nields, 93 Ohio St.3d 6, 30, 752

N.E.2d 859 (2001); State v. Cook, 65 Ohio St.3d 516, 527, 605 N.E.2d 70 (1992).

       {¶40} In reaching this conclusion, the McKnight court explained that “[j]urors need not

agree on a single means for committing” the offense, because different “‘jurors may be persuaded

by different pieces of evidence, even when they agree on the bottom line. Plainly there is no

general requirement that the jury reach agreement on the preliminary factual issues which

underlie the verdict.”’ Id., quoting Schad v. Arizona, 501 U.S. 624, 631-632, 111 S.Ct. 2491,

115 L.Ed.2d 555 (1991), quoting McKoy v. North Carolina, 494 U.S. 433, 449, 110 S.Ct. 1227,

108 L.Ed.2d 369 (1990). See also State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d

31, ¶ 186-188 (concluding that jurors need not agree on a single means for committing an

offense).

       {¶41} With respect to kidnaping, the trial court instructed the jury as follows:
       Before you can find the defendant guilty of kidnaping, you must find beyond a

       reasonable doubt that on or about the 19th day of January, 2013, * * * the

       defendant, by force, threat or deception purposely removed Candace S. White

       from the place where she was found or restrained her of her liberty for the

       purpose of terrorizing or inflicting serious physical harm upon Candace S. White.

The kidnaping instruction the trial court gave the jury in this case is identical to the instruction

the Supreme Court upheld in McKnight. In addition, the trial court apprised the jury of the

unanimous verdict requirement. The trial court instructed as follows:

       Unanimous verdict. Because this is a criminal case, the law requires that all
       twelve of you be in agreement before you can consider that you have reached a
       verdict.

       Verdict Form. The verdict forms will go with you to your jury room. * * * The
       first one here says Count 1, kidnaping. * * * It reads as follows:

       “Verdict. We the jury in this case, being duly impaneled and sworn, do find the
       defendant, David Brabson * * * [guilty or not guilty] of kidnaping in violation of
       Section 2905.01(A)(3) of the Revised Code as charged in Count 1 of the
       indictment.”

       Then there is [sic] twelve lines underneath on the bottom part of the form. Each
       juror that agrees with that verdict must sign this form in ink.

       {¶42} The verdict form for Count 1, kidnaping, contains 12 different signatures; one from

each juror. The verdict is guilty and indicates that all 12 jurors agreed with that verdict.

Therefore, the jury unanimously found Brabson guilty of kidnaping.

       {¶43} The sixth assignment of error is overruled.

       {¶44} Judgment affirmed.

       It is ordered that appellee recover from appellant 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 execution of

sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.



EILEEN T. GALLAGHER, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
TIM McCORMACK, J., CONCUR
