[Cite as Cleveland v. Brown, 2016-Ohio-5405.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 103458




                               CITY OF CLEVELAND
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                MICHAEL D. BROWN
                                                      DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED


                                  Criminal Appeal from the
                                 Cleveland Municipal Court
                     Case Nos. 2014-CRB-033481 and 2014-CRB-034492


        BEFORE: Celebrezze, J., Jones, A.J., and McCormack, J.

        RELEASED AND JOURNALIZED: August 18, 2016
ATTORNEY FOR APPELLANT

Edward F. Borkowksi, Jr.
P.O. Box 609151
Cleveland, Ohio 44109


ATTORNEYS FOR APPELLEE

Barbara Langhenry
Director of Law
BY: Verlinda L. Powell
       Angela Rodriguez
Assistant City Prosecutors
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:

       {¶1} Appellant, Michael D. Brown, appeals his domestic violence, aggravated

menacing, unlawful restraint, and using a firearm while intoxicated convictions in two

criminal cases. He argues his convictions should be reversed because they are against

the manifest weight of the evidence, were tainted by improper “other acts” evidence, and

his trial counsel was ineffective. After a thorough review of the record and law, this

court affirms.

                          I. Factual and Procedural History

       {¶2} Police arrived at a home on East 138th Street in Cleveland, Ohio on

November 29, 2014. They had been summoned by a 911 call from Shaina Bray. As

officers approached the house, they heard shouting coming from within. The officers

knocked and announced themselves, but no one answered and the house grew quiet.

Officers again knocked, with no response. Through a window in the door, Officer

Michael Kovach observed a male walk by an open doorway down the hall. He saw that

the man had a soft-shell rifle case. The officers knocked and announced themselves

twice more before appellant finally came to the door. Appellant’s hand was bleeding,

and he appeared intoxicated. When police entered the home, they observed broken glass

on the floor in a number of places and a broken mirror in the bathroom off the kitchen.

Officers interviewed appellant and Bray, and eventually arrested appellant.

       {¶3} Appellant was charged in Cleveland M.C. No. 2014-CRB-033481 with
violating Cleveland Codified Ordinances (“C.C.O.”) 621.06, first-degree misdemeanor

aggravated menacing; C.C.O. 627.04, first-degree misdemeanor using a weapon while

intoxicated; and C.C.O. 621.08, third-degree misdemeanor unlawful restraint.          In

Cleveland M.C. No. 2014-CRB-034492, appellant was charged with violating R.C.

2919.25, domestic violence, a first-degree misdemeanor; C.C.O. 621.06, aggravated

menacing, a first-degree misdemeanor; C.C.O. 627.04, using a weapon while intoxicated,

a first-degree misdemeanor; and C.C.O. 621.08, unlawful restraint, a third-degree

misdemeanor.

       {¶4} At trial, Bray testified about the incidents that formed the basis of the two

cases, one occurring on November 25, 2014, and the other on November 29, 2014. She

testified that on November 25, she and appellant were at appellant’s home on East 138th

Street, where she was staying. They were discussing recent events involving appellant’s

mother when appellant became upset. He proceeded to break some glass objects by

throwing them. Bray attempted to exit the home. She left the living room where they

had been arguing and attempted to head through the dining room, toward the kitchen, and

out the side door. Appellant jumped on her and knocked her to the ground on top of

shards of glass as she was passing through the dining room. She sustained cuts to her

forearm and her hip. According to Bray, appellant held her there for five to ten minutes,

covering her mouth to prevent her from screaming. He then took her cell phone so she

could not call police. The next day, appellant apologized and Bray decided not to report

the incident to police at that time.
      {¶5} On November 29, appellant and Bray were out celebrating. They returned to

appellant’s house with drinks and snacks to continue the celebration. After some time,

appellant and Bray began to argue.       Bray testified that appellant began breaking

household items again. At some point, appellant retrieved a soft-shell gun case that hung

on the kitchen wall and pulled a shotgun from inside. Bray testified that he pointed the

gun at her and he stated that she was not leaving the house. She managed to lock herself

in the bathroom located off the kitchen and called 911. Appellant eventually forced his

way into the bathroom and threatened Bray with the gun; informing her that she could not

leave the house. Appellant then punched the mirror on the bathroom wall, shattering it

and cutting his hand. The two then heard officers knock on the door, and appellant left

the bathroom.

      {¶6} These events, as testified to by Bray, were different from her written

statements given to police the night of the second incident and the following day. In her

statement given to Officer Kovach, she indicated appellant had threatened her with a gun

on November 25, as well as November 29. However, Bray testified appellant only

brandished a firearm on November 29. Bray also admitted to being convicted of criminal

damaging relating to damage done to appellant’s mother’s vehicle prior to the above

incidents. Further, Bray was the subject of various civil and criminal protection orders

obtained by appellant’s mother. Appellant’s mother also testified that Bray did not live

with appellant at the East 138th Street address. Appellant’s mother testified that she

lived at that address with appellant and Bray could not possibly have lived there because
the protection orders prohibited Bray from contacting her.

       {¶7} After the city rested, the trial court dismissed the charge of using a weapon

while intoxicated in Case No. 2014-CRB-034492, because Bray testified that appellant

did not possess a firearm during the November 25 affray. The jury found appellant

guilty of the remaining charges.     The trial court set the matter for sentencing after

ordering a presentence investigation report.

       {¶8} At a sentencing hearing, the court imposed an aggregate 90-day jail sentence.

It imposed 180-day jail terms on each of the first-degree misdemeanors, with 90 days

suspended. It also imposed 60-day jail terms on each count of unlawful restraint. The

court found that appellant violated terms of community control when he committed these

acts. The court terminated community control and sentenced appellant to 90 days in jail.

 The court ordered all terms to run concurrent to each other, and ordered appellant to be

subject to three years of active community control.

       {¶9} Appellant then filed the instant appeal, assigning three errors for review:

       I. Appellant’s convictions were against the manifest weight of the
       evidence.

       II. The trial court erred by permitting “other acts” testimony in violation of
       Evid.R. 404(B) and 403(A).

       III. Appellant’s trial counsel was ineffective.

                                  II. Law and Analysis

                                   A. Manifest Weight

       {¶10} Appellant first claims that his convictions for domestic violence, unlawful
restraint, aggravated menacing, and using a firearm while intoxicated are against the

manifest weight of the evidence.

       {¶11} Domestic violence, as defined in R.C. 2919.25, states, “[n]o person shall

knowingly cause or attempt to cause physical harm to a family or household member.”

Aggravated menacing, as defined in C.C.O. 621.06 provides, “[n]o person shall

knowingly cause another to believe that the offender will cause serious physical harm to

the person or property of such other person or member of his or her immediate family.”

Unlawful restraint, as defined in C.C.O. 621.08, provides “[n]o person, without privilege

to do so, shall knowingly restrain another of his or her liberty.” Finally, C.C.O. 627.04

defines the offense of using a firearm while intoxicated: “No person, while under the

influence of alcohol or any drug of abuse, shall carry or use any firearm or dangerous

ordnance.” While the city produced sufficient evidence to meet each of the elements for

these crimes, appellant attacks the credibility of that evidence.

       {¶12} When a party challenges the verdict in a case as against the manifest weight

of the evidence, the party is attacking the credibility of the evidence presented. State v.

Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). In determining whether a

conviction is against the manifest weight of the evidence, this court sits as a “thirteenth

juror,” reviewing the entire record, weighing the evidence and all reasonable inferences,

considering 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 reversed and a new trial ordered.’” Id., quoting State
v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). When this court

determines that a criminal conviction is against the manifest weight of the evidence, it

must do so with the utmost caution and only for the “exceptional case in which the

evidence weighs heavily against the conviction.” Id.

       {¶13} Within this assigned error, appellant attacks the credibility of the victim

and the use of her testimony to establish the elements of the aforementioned crimes.

Appellant asserts that Bray’s version of events substantively changed between her initial

reports to officers who responded the night of November 29, 2014, her written statements

given to an investigating detective the following day, the testimony she gave at a

domestic violence protection order hearing, and her testimony at trial.

       {¶14} Indeed, Bray’s account of events changed over time. Officer Kovach

testified that Bray told him that appellant had threatened her with a gun on November 25

as well as November 29, 2014.         However, Bray’s testimony at trial indicated that

appellant did not threaten her with a gun on November 25, 2014.           Bray’s written

statement given to Cleveland Police Detective Nicole Biggers on November 30, 2014,

also included an allegation that appellant threatened Bray with a firearm on November 25.

 Additionally, Bray gave statements to police indicating that appellant struck her in the

temple on November 25, causing her to fall on broken glass. At trial, she testified that

appellant jumped on her back, causing her to fall on broken glass.

       {¶15} Bray’s trial testimony does not stand in isolation. While details of her

testimony changed, some of her testimony was corroborated by others. Officer Kovach
testified that upon arriving at appellant’s home, he heard shouting coming from inside.

He observed appellant carrying a soft-shell gun case that was later found in the home in a

back room off the kitchen. That gun case contained a shotgun identified by Bray as the

weapon with which appellant threatened her. Kovach observed broken glass on the floor

in multiple rooms of the house and saw the broken mirror in the bathroom that Bray

testified appellant had punched.

        {¶16} Appellant also points to Bray’s testimony minimizing her ingestion of

alcohol on November 29 and contrasting it with previous statements.             Appellant

additionally highlights the issues between his mother and Bray as reason for Bray to

fabricate these incidents. Bray indicated she accepted responsibility for and admitted her

role in damaging appellant’s mother’s car, for which she was prosecuted in a criminal

case.

        {¶17} Appellant also asserts that Bray was not a household member because no

evidence was provided that Bray lived with appellant, and she testified at a previous

hearing that she lived elsewhere. Appellant’s mother also testified that Bray did not live

with appellant. In fact, appellant’s mother testified that Bray and appellant were not

even dating at the time of these incidents. However, Officer Kovach testified that Bray

had clothing, including clothes belonging to her two children at the home, and she

informed him that she also had other household items at the home. Bray also testified she

lived with appellant.

        {¶18} After reviewing all the evidence including Bray’s contradictory statements,
this court cannot say that this is the exceptional case where the jury clearly lost its way in

convicting appellant of domestic violence, aggravated menacing, unlawful restraint, and

using a weapon while intoxicated.

       {¶19} The using a weapon while intoxicated charge was corroborated by Officer

Kovach’s testimony. He observed appellant carrying a soft-shell gun case. That case

was later found and from which a shotgun was recovered. Officer Kovach also testified

that appellant admitted to being intoxicated after his arrest. Bray had injuries to her arm

and hip that were observed and documented by Officer Kovach and his partner. Bray

testified that appellant held her down for several minutes on one occasion and held her at

gunpoint on another. Also, when appellant threatened her with a firearm, Bray testified

she felt scared for her life and she begged appellant not to kill her.

       {¶20} The deviations between Bray’s trial testimony and written statements do not

so seriously damage her credibility as to render her testimony unbelievable. The jury

heard those discrepancies and was in a better position to judge her credibility after

viewing the live, in-person testimony of all the witnesses. This is not the exceptional

case where the weight of the evidence is clearly in favor of acquittal of the charged

crimes. This assignment of error is overruled.

                                 B. Other Acts Evidence

       {¶21} Appellant also points to several instances in Bray’s testimony that he claims

constituted impermissible testimony of other acts used to insinuate that appellant acted in

conformity therewith. Bray testified a few times that appellant would get angry and it
was like a switch was flipped where he would get aggressive, throw things, or punch

walls. She testified that these sorts of arguments had happened in the past. She also

testified that she had to seek a protection order against appellant and that appellant was

following her and harassing her. However, she testified appellant had never hit her prior

to the November 25, 2014 incident.

      {¶22} The trial court enjoys broad discretion in the admission of evidence.

Generally, this court would not reverse a trial court’s decision on the admission of

evidence absent an abuse of that discretion. Shimola v. Cleveland, 89 Ohio App.3d 505,

511, 625 N.E.2d 626 (8th Dist.1992). But here, appellant did not object to any of the

statements that he now claims were improperly admitted. Therefore, he has waived all

but plain error. State v. Herron, 8th Dist. Cuyahoga No. 99110, 2013-Ohio-3139, ¶ 17.

“Plain error is only recognized where, but for the error, the result of the trial would

clearly have been otherwise.” Id., citing State v. Long, 53 Ohio St.2d 91, 372 N.E.2d

804 (1978), paragraph two of the syllabus.

      {¶23} “Evidence that an accused committed a crime other than the one for which

he is on trial is not admissible when its sole purpose is to show the accused’s propensity

or inclination to commit crime or that he acted in conformity with bad character.”

(Citation omitted.) State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d

1278, ¶ 15. This exclusion and exceptions to this broad prohibition are codified in R.C.

2945.59 and Evid.R. 404.

      {¶24} R.C. 2945.59 provides,
In any criminal case in which the defendant’s motive or intent, the absence

of mistake or accident on his part, or the defendant’s scheme, plan, or

system in doing an act is material, any acts of the defendant which tend to

show his motive or intent, the absence of mistake or accident on his part, or

the defendant’s scheme, plan, or system in doing the act in question may be

proved, whether they are contemporaneous with or prior or subsequent

thereto, notwithstanding that such proof may show or tend to show the

commission of another crime by the defendant.

{¶25} Further, Evid.R. 404 sets forth similar guidance:

(A) Character evidence generally. Evidence of a person’s character or a trait
of character is not admissible for the purpose of proving action in
conformity therewith on a particular occasion, subject to the following
exceptions:

       (1) Character of accused. Evidence of a pertinent trait of character
       offered by an accused, or by the prosecution to rebut the same is
       admissible; however, in prosecutions for rape, gross sexual
       imposition, and prostitution, the exceptions provided by statute
       enacted by the General Assembly are applicable.

       ***

(B) Other crimes, wrongs or acts. Evidence of other crimes, wrongs, or acts

is not admissible to prove the character of a person in order to show action

in conformity therewith. It may, however, be admissible for other purposes,

such as proof of motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident.

{¶26} A trial court must also factor in any unfair prejudice that such evidence
would enure to a criminal defendant at trial. Evid.R. 403(A) states, “[a]lthough relevant,

evidence is not admissible if its probative value is substantially outweighed by the danger

of unfair prejudice, of confusion of the issues, or of misleading the jury.”

       The first step is to consider whether the other acts evidence is relevant to

       making any fact that is of consequence to the determination of the action

       more or less probable than it would be without the evidence. Evid.R. 401.

       The next step is to consider whether evidence of the other crimes, wrongs,

       or acts is presented to prove the character of the accused in order to show

       activity in conformity therewith or whether the other acts evidence is

       presented for a legitimate purpose, such as those stated in Evid.R. 404(B).

       The third step is to consider whether the probative value of the other acts

       evidence is substantially outweighed by the danger of unfair prejudice. See

       Evid.R. 403.

Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, at ¶ 20.

       {¶27} Here, Bray’s testimony consisted of statements that appellant had anger

issues and would become aggressive during arguments as if a switch had been flipped in

his mind. He would then throw things or punch a wall. She specifically testified that he

was never physically violent towards her or threatened her life prior to the November 25,

2014 incident. This testimony was not offered to show that appellant acted in conformity

with a particular character trait. This is clear given that Bray testified that appellant

never acted in a similar fashion in the past.
       {¶28} When similar general character testimony was adduced in a case before the

Fifth District, it ruled that it did not rise to the level of plain error. State v. Mills, 5th

Dist. Richland No. 10CA119, 2011-Ohio-5793, ¶ 110-119. There, evidence about a

defendant’s prior inclination toward violence and prior acts of manipulation and threats

was deemed admissible to explain a fight that occurred between neighbors. Id. at ¶ 110.

       {¶29} Further, the evidence here was germane to whether Bray had a reasonable

fear for her safety — an element of aggravated menacing. See State v. Conkle, 2d Dist.

Montgomery Nos. 24161 and 24163, 2012-Ohio-1772, ¶ 49. Here, the evidence does not

rise to the level of plain error. Even if Bray’s statements did constitute other acts

evidence, most of the questions posed by the city did not seek to illicit testimony of prior

acts and responses and were not highlighted by the city. The brief statements related to

appellant’s anger management issues did not prejudice appellant. Bray’s testimony could

not be confused by the jury that appellant was acting in conformity with past incidents or

a character trait because she stated that he had never before been physically violent

towards her or threatened her life. Therefore, the outcome of the trial would not have

clearly been different had the evidence been properly objected to and stricken.

       {¶30} Appellant’s second assignment of error is overruled.

                          C. Ineffective Assistance of Counsel

       {¶31} Finally, appellant argues that counsel was constitutionally ineffective for

allowing other acts testimony without objection.

       {¶32} To establish ineffective assistance of counsel, first, appellant must show that
there was a “‘substantial violation of any of defense counsel’s essential duties to [their]

client. Next, and analytically separate from the question of whether the defendant’s Sixth

Amendment rights were violated, there must be a determination as to whether the defense

was prejudiced by counsel’s ineffectiveness.’” State v. Bradley, 42 Ohio St.3d 136,

141-142, 538 N.E.2d 373 (1989), quoting State v. Lytle, 48 Ohio St.2d 391, 396-397, 358

N.E.2d 623 (1976), vacated in part on other grounds, Lytle v. Ohio, 438 U.S. 910, 98

S.Ct. 3134, 57 L.Ed.2d 1154 (1978).

       {¶33} The first prong examines whether counsel’s representation “‘fell below an

objective standard of reasonableness.’ Furthermore, ‘the defendant must show that there

is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.’” State v. Sanders, 94 Ohio St.3d 150, 151, 761

N.E.2d 18 (2002), quoting Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984). “‘A reasonable probability is a probability sufficient to

undermine confidence in the outcome.’” Bradley at 142, quoting Strickland at 694.

       {¶34} A licensed attorney is given great deference in the representation of a

criminal defendant. Strickland at 689. A reviewing court will strongly presume that

counsel rendered adequate assistance and made all significant decisions in the exercise of

reasonable professional judgment. Bradley at 141.

       {¶35} As set forth above, the testimony that appellant had anger issues in the past

but that he acted distinctly different from those past events does not fall within the

category of evidence precluded by Evid.R. 404 when it was not offered to show that he
acted in conformity therewith. Therefore, trial counsel was not ineffective for failing to

object to this testimony.

       {¶36} Even if this court were to presume that the evidence above constituted

inadmissible other acts evidence, “[f]ailure to object to error, alone, is not enough to

sustain a claim of ineffective assistance of counsel.” State v. Holloway, 38 Ohio St.3d

239, 244, 527 N.E.2d 831 (1988). This is because

       “experienced trial counsel learn that objections to each potentially

       objectionable event could actually act to their party’s detriment. * * * In

       light of this, any single failure to object usually cannot be said to have been

       error unless the evidence sought is so prejudicial * * * that failure to object

       essentially defaults the case to the state. Otherwise, defense counsel must so

       consistently fail to use objections, despite numerous and clear reasons for

       doing so, that counsel’s failure cannot reasonably have been said to have

       been part of a trial strategy or tactical choice.”

State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, ¶ 140, quoting

Lundgren v. Mitchell, 440 F.3d 754, 774 (6th Cir.2006).

       {¶37} Appellant’s counsel could have chosen not to object to the brief comments

Bray made about past arguments between her and appellant as a trial tactic as to not draw

attention to those statements.

       {¶38} Appellant’s third assignment of error is overruled.

                                      III. Conclusion
       {¶39}    Appellant’s convictions for domestic violence, aggravated menacing,

unlawful restraint, and using a firearm while intoxicated are not against the manifest

weight of the evidence. Further, the brief statements Bray made about past arguments

she had with appellant did not rise to the level of plain error. Finally, appellant’s counsel

was not ineffective in failing to object to these statements.

       {¶40} Judgment affirmed.

       It is ordered that appellee recover of 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 municipal

court to carry this judgment into execution. The defendant’s convictions 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.



FRANK D. CELEBREZZE, JR., JUDGE

LARRY A. JONES, SR., A.J., and
TIM McCORMACK, J., CONCUR
