[Cite as State v. Brown, 2014-Ohio-5456.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


State of Ohio                                   Court of Appeals Nos. L-13-1105
                                                                      L-13-1106
        Appellee
                                                Trial Court Nos. CR0201301084
v.                                                               CR0201301269

Michael R. Brown                                DECISION AND JUDGMENT

        Appellant                               Decided: December 12, 2014

                                            *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Jennifer Liptack-Wilson, Assistant Prosecuting Attorney,
        for appellee.

        Tim A. Dugan, for appellant.

                                            *****


        SINGER, J.

        {¶ 1} Appellant, Michael Brown, appeals from two May 3, 2013 judgments of the

Lucas County Court of Common Pleas, both convicting him of violating a civil protection

order, R.C. 2919.27(A)(1) and (B)(3). For the reasons which follow, we affirm.
      {¶ 2} Appellant was charged with violating a civil protection order on two

separate occasions. The cases were consolidated for trial and appellant was convicted by

a jury of both offenses. Appellant was sentenced to a 12-month term of imprisonment

and an 11-month term of imprisonment, which were to be served consecutively.

Appellant appealed and asserts the following assignments of error:

             1) The state of Ohio failed to provide legally sufficient evidence to

      sustain a conviction of Violation of a Civil Protection Order, violating

      Appellant’s right to due process.

             2) The Trial Court committed plain error by not ensuring that the

      jury was fair and impartial.

             3) Appellant received ineffective assistance of counsel as Trial

      Counsel failed to protect Appellant’s right to a fair and impartial jury.

             4) Appellant’s convictions fell against the manifest weight of the

      evidence.

      {¶ 3} The following evidence was submitted at trial. Christina Green obtained a

temporary civil protection order against appellant in March 2011, and it was extended

until March 4, 2013. The order prohibited appellant from harming, attempting to harm,

threatening, stalking, or following Green. The order also prohibited appellant from

causing or encouraging another to do any act prohibited by the order.

      {¶ 4} Green testified at appellant’s trial that he stalked her on December 3, 13,

and 14 of 2012. She testified that on December 3, 2012, she observed appellant




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following her vehicle after she left her home for work. Appellant did not live near her

and did not work downtown where she did. She authenticated a photograph taken by her

employer’s security camera evidencing that appellant’s vehicle was parked outside her

place of employment that morning. She reported the incident to the police two days later.

On December 13, 2012, Green observed appellant drive by the fitness club where she was

working out. Appellant parked his vehicle and then stood outside his vehicle and

watched her through the windows. Green’s mother also testified that she saw appellant at

the center that afternoon. By the time police arrived, appellant had left the premises.

After this incident, Green hired private investigators to follow appellant and photograph

him as he followed Green. On December 14, 2014, Green saw appellant sitting alone and

watching her while she was in a bar. At one point, appellant touched her as he passed by

her. After about 15-20 minutes, Green saw appellant leave the bar with their son.

       {¶ 5} After the last incident, Green learned from her supervisor that Kevin Stuart,

an inmate at the correction facility where she worked, had private information about her.

Green contacted Detective Kaminsky to investigate the matter.

       {¶ 6} Two private investigators testified at trial. The first private investigator

testified that he observed appellant enter the bar parking lot on December 14, 2014, after

Green. Appellant circled the lot, and parked near Green’s car. Appellant and his son

entered the bar. By the time the investigator walked to the door to enter the bar, appellant

and his son were exiting the bar. A second investigator testified she photographed

appellant outside the bar. The first investigator attempted to follow appellant, but lost




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sight of appellant as he left the parking lot. The second investigator stood outside the bar

and observed appellant park at a nearby shopping mall for ten minutes. Afterward, both

investigators observed appellant move his car to park in a parking lot adjacent to the bar

parking lot. Appellant exited his vehicle and walked to the edge of the bar lot and

watched the front door of the bar for five-to-ten minutes. Afterward, appellant left the

lot. The first investigator called the police, but by the time the police arrived, appellant

had left the area.

        {¶ 7} Kaminski testified that on December 19, 2012, he began to investigate a

complaint against appellant because Green had complained about the civil protection

order violation. Kaminski learned from the director of the Correctional Treatment

Facility and Green that an inmate, Stuart, was willing to testify about a conversation he

had with appellant while they were both in the treatment facility. Kaminski reviewed

Stuart’s signed statement that was written by an employee of the treatment facility for

Stuart because he had trouble writing. Kaminski also interviewed Stuart in person.

Kaminski verified that Stuart and appellant were together in the medical pod at the same

time.

        {¶ 8} Stuart testified at appellant’s trial on April 10, 2013, that he was currently

incarcerated at the Correction Center of Northwest Ohio until his four-year sentence for

aggravated robbery would end on “April 12, 2012.” Clearly, Stuart misspoke regarding

the date of his release and meant “2013.” He further testified that he was sent to the

Correctional Treatment Facility during his term where he knew Christina Green worked.




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At some unidentified date, he was transferred to the Lucas County Jail medical unit

because he needed 24-hour medical treatment. While he was in the medical unit, Stuart

met appellant. The two conversed and appellant told Stuart personal information about

Green because he believed he was in jail because of her. Appellant offered to pay Stuart

to cause some kind of harm to Green, which would make appellant feel better. When

Stuart returned to the Correction Treatment Facility, he first decided not to disclose the

conversation to stay out of the matter, but later decided to tell someone to protect himself

in case Green was harmed. Stuart told a supervisor about the conversation at some

unidentified time.

       {¶ 9} Appellant testified he had been found guilty of previously violating the civil

protection order on July 5, 2011, and July 24, 2012, and was sentenced to 180 days of

incarceration. Appellant admitted that he parked next to Green’s place of employment on

December 3, 2012, even though it was unnecessary for him to drive by the place to reach

the unemployment office. He testified he was had been incarcerated since January 3,

2013, and therefore could not produce documentation that he had been at the

unemployment office on December 3, 2012. Appellant denied being at the fitness center

on December 13, 2012. He admitted to having been at the bar on December 14, 2012.

He testified that he was there with his son to eat and play pool. He denied having been

there to look for Green and denied having seen her that evening. Appellant was asked if

he had been incarcerated with Stuart in “January, 2012,” at the Lucas County Jail and he

responded “yes.”




5.
       {¶ 10} In his first assignment of error, appellant argues that there was insufficient

evidence to support his conviction for recklessly violating the civil protection order on or

about January 11, 2013 (case No. CR0201301269).

       {¶ 11} A challenge to the sufficiency of the evidence is a question of law. State v.

Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). The standard for

determining whether there is sufficient evidence to support a conviction is whether the

evidence admitted at trial, “if believed, would convince the average mind of 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.” State v.

Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus,

superseded by constitutional amendment on other grounds as stated in State v. Smith, 80

Ohio St.3d 89, 102, 684 N.E.2d 668 (1997), fn. 4, citing Jackson v. Virginia, 443 U.S.

307, 319, 99 S.Ct. 2781, 61 L.E.2d 560 (1979). Accord Thompkins. Therefore, “[t]he

verdict will not be disturbed unless the appellate court finds that reasonable minds could

not reach the conclusion reached by the trier-of-fact.” State v. Dennis, 79 Ohio St.3d

421, 430, 683 N.E.2d 1096 (1997), citing Jenks at paragraph two of the syllabus. In

determining whether the evidence is sufficient to support the conviction, the appellate

court does not weigh the evidence nor assess the credibility of the witnesses. State v.

Walker, 55 Ohio St.2d 208, 212, 378 N.E.2d 1049 (1978) and State v. Willard, 144 Ohio

App.3d 767, 777-778, 761 N.E.2d 688 (10th Dist.2001). But, the court must view the




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evidence in the light most favorable to the prosecution. Jenks, supra. If the state “relies

on circumstantial evidence to prove an element of the offense charged, there is no

requirement that the evidence must be irreconcilable with any reasonable theory of

innocence in order to support a conviction[.]” so long as the jury is properly instructed as

to the burden of proof, i.e., beyond a reasonable doubt. Jenks at paragraph one of the

syllabus.

       {¶ 12} R.C. 2919.27(A)(1) provides that “[n]o person shall recklessly violate the

terms of * * * [a] protection order issued or consent agreement approved pursuant to

section 2919.26 or 3113.31 of the Revised Code.” Section (B)(3) provides that the

offense is a felony of the fifth degree if there has been a prior conviction for the same

offense.

       {¶ 13} Appellant argues that the prosecution failed to present any evidence as to

when appellant allegedly attempted to hire Kevin Stuart to physically assault his

estranged girlfriend, Christina Green. The indictment stated that the crime occurred on

January 11, 2013. Appellant testified that he saw Stuart in “January, 2012.” However, in

closing arguments the prosecution indicated that appellant saw Stuart on January 18,

2012, and the court, in its jury instructions, recited a date of January 11, 2013. Appellant

argues that while the date was not an essential element of the crime, the crime had to

have occurred after the civil protection order was instituted and had to have occurred

after a prior violation before the court could enhance the level of offense.




7.
       {¶ 14} We find that there was sufficient evidence that the violation occurred on or

about “January 11, 2013” as charged in the indictment. While appellant agreed with the

prosecutor that appellant had been incarcerated with Stuart in January “2012,” the jury

could reasonably concluded that the prosecutor and appellant both erred by stating

“2012” since appellant also testified that he was incarcerated as of January 3, 2013.

Appellant’s first assignment of error is found not well-taken.

       {¶ 15} In his second assignment of error, appellant argues that he was not

convicted by a fair and impartial jury. He contends that the trial court failed to ensure

that juror No. 11 could be fair and impartial after the juror informed the bailiff that he

faintly recognized Green from high school when she testified, but not her name.

Appellant asserts that the failure to question the witness further amounted to plain error

since appellant did not object at trial to the presence of the juror.

       {¶ 16} The trial court advised the prospective jurors that if there was any reason

why they could not be fair and impartial, they should disclose such information. The

court and the prosecution also emphasized the need for the jurors to be fair and impartial

during the trial. Accordingly, when juror No. 11 vaguely recognized a witness for the

prosecution when she testified, the juror immediately reported to the bailiff that the

witness was someone who had attended the same high school as the juror fifteen years

earlier. The bailiff immediately presented the information to the court. A discussion

ensued at the bench and the prosecutor inquired of defense counsel whether he would

object. Defense counsel indicated that he was fine with the juror serving on the trial.




8.
       {¶ 17} Two types of error can occur at trial, waiver and forfeiture. The distinction

between the two types of errors is relevant for appellate review because only forfeited

error, not waived error, is reviewable under the plain error analysis. State v. Payne, 114

Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 22-23. “Waiver is the intentional

relinquishment or abandonment of a right.” Id. at ¶ 23. “[F]orfeiture is a failure to

preserve an objection.” Id. While the courts continue to use the terms interchangeably,

the concepts which they represent are uniquely different. The purpose of Crim.R. 52 is to

empower courts with limited power to correct errors that occurred during trial. State v.

Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 9. The rule operates as

follows:

              If the defendant failed to raise an error affecting substantial rights at

       trial, an appellate court reviews the error under the plain-error standard in

       Crim.R. 52(B). * * * if the defendant has objected to an error in the trial

       court, an appellate court reviews the error under the “harmless error”

       standard in Crim.R. 52(A)—”a standard significantly more favorable to the

       defendant.” Id. at ¶ 14-15.

       {¶ 18} In the case before us, appellant specifically was asked and waived his right

to object to juror No. 11 serving on the jury. Therefore, Crim.R. 52 is not applicable.

However, appellant asserts that a fundamental structural error occurred. But structural

error has always been tied to Crim.R. 52. We find by waiving his right to raise this issue




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on appeal, he has also waived structural error relating to this issue. State v. Thompson, 2d

Dist. Montgomery No. 22984, 2010-Ohio-1680, 23010 WL 1511496, *23 (Fain, J.,

dissenting).

       {¶ 19} Even if we did consider appellant’s structural error argument, we find it

lacks merit. Appellant argues that pursuant to State v. Betz, 6th Dist. Wood No. WD-12-

050, 2014-Ohio-55, the trial court in this case should have held an evidentiary hearing to

ensure that the trial was fair and impartial. We disagree.

       {¶ 20} First, Betz dealt with jury tampering by intimidating jurors, not general

bias. Second, even in Betz we held there must be a colorable claim of jury bias before the

court has a duty to investigate the matter in order to exercise its sound discretion and

determine whether misconduct occurred and whether it had a prejudicial effect on the

trial which would require a new trial. United States v. Olano, 507 U.S. 725, 739, 113

S.Ct. 1770, 123 L.Ed.2d 508 (1993), Remmer v. United States, 347 U.S. 227, 229, 74

S.Ct. 450, 98 L.Ed. 654 (1954). In Betz, the fact that the intimidation occurred gave rise

to a colorable claim of bias and the need for a hearing to determine the impact upon the

jury. In the case before us, there is no obvious indication that a juror would be influenced

by the presence of a witness he recognized from having attended the same high school.

The burden remained on appellant to present a colorable claim of jury bias to warrant a

hearing on the matter. Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 71 L.Ed.2d 78

(1982) and Olano at 739.




10.
       {¶ 21} When juror No. 11 determined that he knew the witness, he immediately

disclosed that fact to the court. He did not conceal the fact of his recognition or give

false testimony during voir dire. The juror told the bailiff of his recognition of the

witness’s face from a past connection. No additional evidence of a connection between

the juror and witness was disclosed. Based on these facts, it is unreasonable to infer any

further connection between the juror and witness. No colorable claim of misconduct was

presented and no evidence of prejudice occurred.

       {¶ 22} We find appellant’s second assignment of error not well-taken.

       {¶ 23} Appellant also asserts in his third assignment of error that his counsel

rendered ineffective assistance by failing to inquire further about any potential jury bias.

To establish a claim of ineffective assistance of appointed counsel, the defendant must

show that his counsel’s representation “fell below an objective standard of reasonable

representation and, in addition, prejudice arises from counsel’s performance.” Strickland

v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

       {¶ 24} The mere fact that a juror knows a witness in the trial does not disqualify

him or her from serving. State v. Thomas, 80 Ohio App.3d 452, 455, 609 N.E.2d 601 (3d

Dist.1992). From the conversation that took place, it is clear that defense counsel did not

believe any bias existed by the mere knowledge of the identity of a witness. The

determination of whether to inquire further of the juror during voir dire and/or retain him

on the jury is an intricate part of the entire trial strategy and cannot be subjected to

review. State v. Hess, 4th Dist. Washington No. 13CA15, 2014-Ohio-3193, ¶ 33-36, and




11.
State v. Monford, 190 Ohio App.3d 35, 2010-Ohio-4732, 940 N.E.2d 634, ¶ 94.

Furthermore, appellant has failed to demonstrate on appeal that any actual bias or even

that a colorable claim of bias existed.

       {¶ 25} Therefore, we find appellant’s third assignment of error not well-taken.

       {¶ 26} In his fourth assignment of error, appellant argues that his convictions were

contrary to the manifest weight of the evidence.

       {¶ 27} Even when there is sufficient evidence to support the verdict, a court of

appeals may decide that the verdict is against the weight of the evidence. Thompkins, 78

Ohio St.3d at paragraph two of the syllabus, 678 N.E.2d 541. When weighing the

evidence, the court of appeals must consider whether the evidence in a case is conflicting

or where reasonable minds might differ as to the inferences to be drawn from it, consider

the weight of the evidence, and consider the credibility of the witnesses to determine if

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.” Id. at 387, quoting State v. Martin,

20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983) and Smith, 80 Ohio St.3d at

114, 684 N.Ed.2d 668. This determination involves a discretionary power to grant a new

trial which should be “invoked only in extraordinary circumstances when the evidence

presented weighs heavily in favor of the defendant.” State v. Gleason, 110 Ohio App.3d

240, 244, 673 N.E.2d 985 (9th Dist.1996).

       {¶ 28} With respect to the charge of recklessly violating the civil protection order

on or about January 11, 2013 (case No. CR0201301269), appellant argues that the




12.
conviction was contrary to the manifest weight of the evidence because it was based

solely on the testimony of Stuart. With respect to the charge of recklessly violating the

civil protection order December 3 through 14, 2012 (case No. CR0201301084), appellant

argues the bulk of the evidence consisted of the events at the bar which is a public place

and that appellant had legitimate reasons for being there as well as downtown.

       {¶ 29} For both convictions, appellant argues only that the jury lost its way in

evaluating the conflicting evidence that was presented. We disagree. When all of the

evidence is considered as a whole, we find that the jury did not lose its way in evaluating

the evidence and drawing inferences from the direct evidence. Therefore, we find that

appellant’s convictions were not contrary to the manifest weight of the evidence.

Appellant’s fourth assignment of error is not well-taken.

       {¶ 30} Having found that the trial court did not commit error prejudicial to

appellant, the judgments of the Lucas County Court of Common Pleas are affirmed.

Appellant is ordered to pay the court costs of this appeal pursuant to App.R. 24.


                                                                       Judgments affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




13.
                                                              State v. Brown
                                                              C.A. Nos. L-13-1105
                                                                         L-13-1106




Mark L. Pietrykowski, J.                      _______________________________
                                                          JUDGE
Arlene Singer, J.
                                              _______________________________
James D. Jensen, J.                                       JUDGE
CONCUR.
                                              _______________________________
                                                          JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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