[Cite as State v. Brown,

.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs- Case No. 2013 AP 05 0021 MARY D. BROWN

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2012 CR 08 0230

JUDGMENT: Affirmed in Part; Reversed in Part and Remanded

DATE OF JUDGMENT ENTRY: March 7, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RYAN D. STYER VALERIE KUNZE PROSECUTING ATTORNEY ASSISTANT STATE PUBLIC DEFENDER 125 East High Avenue 250 East Broad Street, Suite 1400 New Philadelphia, Ohio 44663 Columbus, Ohio 43215 Tuscarawas County, Case No. 2013 AP 05 0021 2

Wise, J.

{¶1} Appellant Mary D. Brown appeals her sentence and conviction entered in

the Tuscarawas County Court of Common Pleas following a jury trial.

{¶2} Appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶3} Appellant Mary Brown and her husband Ralph Brown were married in

1973. In 1976, Ralph Brown enlisted in the Navy and began what would be a 20-year

career as a fire control technician on submarines. His job required him to be away for 3

months, home for 3 months, etc. During those 20 years, the Browns lived in

Connecticut, Virginia and Washington.

{¶4} In 1990, while the couple was living in Connecticut, Appellant’s right arm

was amputated due to cancer. In 1996, Mr. Brown retired and the couple returned to

Ohio. In 2005, Appellant had to have her right leg amputated after numerous surgeries

caused by a MRSA infection.

{¶5} On the night of August 17, 2012, Mr. Brown went to bed sometime around

10:30 p.m. - 12:00 midnight. (T. at 237, 275). When he went to bed that night, his wife

was already in bed. (T. at 282). The next thing he remembers is waking to a loud shot

and finding himself covered in blood.

He recalled asking Appellant if she knew what

had happened and she said she did not know. (T. at 238). Mr. Brown went to the

kitchen to get an icepack for his head and then went into the bathroom to look at himself

in the mirror.

He stated that he could tell that he had been shot.

He took a

shower to clean off the blood, than asked Appellant if she could see anything.

She Tuscarawas County, Case No. 2013 AP 05 0021 3

replied that he had a little hole in the back of his head and maybe a scratch in the front.

{¶6} When Mr. Brown went back into the bedroom to get dressed, he observed

a hole in the headboard of the bed with an object in it. He said at the time that he

thought that if it was a bullet in that hole, it must have came in from outside. (T. at 241,

243, 271-272).

{¶7} Mr. Brown decided to go to the hospital and have an x-ray performed.

Once at the hospital, a doctor confirmed that he had a “superficial” bullet hole in his

head. (T. at 244, 252). The hospital contacted the police and Detective Orvis Campbell

came to the hospital to investigate. (T. at 244). Det. Campbell asked Mr. Brown if he

had attempted suicide.

{¶8} Upon returning home with the Sheriff’s deputy, a search of the windows

and outside walls was done which revealed that the bullet did not enter from outside the

house. (T. at 243). Mr. Brown stated that it was at this time that he first realized what

had happened, that Appellant had shot him. (T. at 243-245).

{¶9} After arriving at the house and looking at the scene, detectives questioned

Appellant a second time. (T. at 251, 408). At that time Appellant confessed “I shot him”.

(T. at 251, 408-409). She turned over the gun she used to the officers. (T. at 352).

The gun was inside a sock, inside a bag, hidden in the closet.

Appellant was

arrested and charged with attempted murder with a forearm specification and tampering

with evidence.

{¶10} A jury trial was held in this matter on February 26, 27, 28 and March 1, 4,

5, 6 , 2013. Tuscarawas County, Case No. 2013 AP 05 0021 4

{¶11} At trial, Mr. Brown testified that about two weeks before the shooting,

Appellant brought the revolver home with her from her son’s house, explaining that her

son did not want it in his home, around his children. (T. at 247-248, 287-288). He said

that he was unfamiliar with this particular type of revolver because it did not have a

hammer. (T. at 248). He further stated that the gun was loaded when Appellant brought

it home, but that he unloaded it and placed the bullets inside a tan sock in which the gun

was being kept. (T. at 248-249). He stated that he then placed the gun, which was in

the sock, on a bench located in the rec room. (T. at 250). About one week later, he

noticed the gun was no longer on the bench and asked Appellant what happened to it.

(T. at 250-251). Appellant told him that her son came and picked up the gun.

{¶12} Detective Campbell testified that during his interview with Appellant at the

house she told him that she was laying in bed next to her husband when she shot him.

(T. at 413). He said she was rambling about being frustrated about the fact that her

husband withheld money from her. (T. at 408-410).

{¶13} Detective Campbell conducted a third interview with Appellant at the

Sheriff’s Office, which was recorded and played at trial. (T. at 415-467). During this

interview, Appellant told Det. Campbell “I love him still no matter what. I love him. I just

flipped out.” (T. at 421). She went on to tell Det. Campbell that the night she shot her

husband was the 30-year anniversary of when she had attempted suicide. (T. at 423-

427). She said she was 8 months pregnant at the time and the suicide attempt resulted

in her going into premature labor. (T. at 423-427). She said she was considering

attempting suicide again that night but then thought why should she do that and let him

still have fun. (T. at 437). Appellant then stated that she decided to put the gun away Tuscarawas County, Case No. 2013 AP 05 0021 5

but that when she tried to get out of bed, she lost her balance and her finger slipped on

the trigger. (T. at 440-441). She went on to tell Det. Campbell “I did snap in my mind”

and “I’m not okay”. (T. at 449, 456). She also stated that she called her son and told

him that she shot Ralph because she just couldn’t handle things anymore. (T. at 452).

{¶14} Detective Moore testified that during his interview with Appellant, she

explained “I was laying in my bed. I was scared. I was so afraid that I forgot to pull the

gun out of the sock when I pulled the trigger.” (T. at 353). She further explained that

she pointed the gun and closed her eyes and that her hand was shaking. (T. at 353,

382).

{¶15} The Browns’ neighbor Cheri Harris also testified. She stated that Appellant

had discussed with her that her and her husband had some issues involving the way

money was spent and that she was frustrated by it. (T. at 333). She further testified

that on a couple of occasions, Appellant had mentioned that she was considering

divorcing her husband.

She stated the angriest she had ever seen Appellant was

about a week before the shooting when Appellant told her that “something had to

change” and that “she was going to call her lawyer and just file for divorce.” (T. at 333-

334). She testified that she visited Appellant at the jail about a week and a half after the

shooting and Appellant told her “I lost it. That’s it. I’ve lost it. I asked God to forgive me

and he did.” (T. at 335). She said that Appellant seemed remorseful.

She said she

visited Appellant two or three more times and that it was during one of these visits that

Appellant brought up the shooting and told her that she was putting the gun back into

the sock when it accidentally went off. (T. at 337). She said that at this time, Appellant Tuscarawas County, Case No. 2013 AP 05 0021 6

did not seem remorseful or upset about it, instead she seemed more relaxed. (T. at 339,

345).

{¶16} The jury also heard testimony from Andrew Chappell from the Bureau of

Criminal Investigation who stated that the gun used that night was a double-action

revolver, which has two trigger pulls. (T. at 299). One of the trigger pulls requires

cocking the gun and another allows the gun to be fired without cocking it but required

more pressure to be applied to the trigger. (T. at 300-301). He further explained that the

gun was equipped with a safety hammer that prevents the gun from firing unless the

trigger is being pulled and held in the pulled position. (T. at 320).

{¶17} After deliberations, the jury returned a verdict of guilty on the attempted

murder charge and firearm specification. (T. at 761).

{¶18} On April 24, 2013, after a presentence investigation was completed, the

trial court sentenced Appellant to three (3) years in prison on the attempted murder

charge to be served consecutively to a mandatory, three (3) year sentence on the

firearm specification.

{¶19} During the sentencing hearing the trial court did not address court costs.

The judgment entry, however, includes an order that “all costs of this prosecution in this

case are assessed against the Defendant.” April 25, 2013, Judgment Entry at 7.

{¶20} Appellant now appeals, assigning the following errors for review:

ASSIGNMENTS OF ERROR

{¶21} “I. MARY BROWN'S CONVICTION FOR ATTEMPTED MURDER WITH

A FIREARM SPECIFICATION WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE

IN VIOLATION OF MRS. BROWN'S RIGHT TO DUE PROCESS OF LAW UNDER THE Tuscarawas County, Case No. 2013 AP 05 0021 7

FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION, AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.

{¶22} “II. THE TRIAL COURT ERRED WHEN IT FAILED TO ADDRESS THE

IMPOSITION OF COURT COSTS IN OPEN COURT, BUT INCLUDED SUCH COSTS

IN THE SENTENCING ENTRY.”

I.

{¶23} In her First Assignment of Error, Appellant claims her conviction was not

supported by sufficient evidence. We disagree.

{¶24} An appellate court's function when reviewing the sufficiency of the

evidence is to determine 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 (1991),

,

, paragraph two of the syllabus.

{¶25} In the instant case, Appellant was convicted of attempted murder in

violation of R.C. §2923.02(A) and R.C. §2903.02(B) which state the following:

{¶26} “[R.C. 2923.02(A)] No 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.

{¶27} “[R.C. 2903.02](A) No person shall purposely cause the death of another

or the unlawful termination of another's pregnancy.”

{¶28} Appellant's specific challenge to the sufficiency of the evidence appears to

be that she was emotionally unwell at the time of the shooting and that because of her Tuscarawas County, Case No. 2013 AP 05 0021 8

unclear mind on that night, the State failed to prove that she had a specific intention to

shoot her husband.

{¶29} Upon review, we find, though, that the record contains sufficient evidence

of attempted murder. Based on the testimony of witnesses, as set forth in detail above

in the recitation of the facts, the jury in this case could have reasonably concluded that

Appellant purposely engaged in conduct, which, if successful, could have caused the

death of Ralph Brown.

{¶30} The jury in this case heard testimony from the victim Ralph Brown, the

investigating officers, the investigator from the Crime Lab, the neighbor Cheri Harris and

the emergency room doctor. The detectives involved in the case testified that Appellant

told them she shot her husband. During the taped police interview, Appellant admitted

that she “snapped in her mind” and further said she wished she had not done it. (T. at

458). Ms. Harris said Appellant told her she “lost it” and asked God for forgiveness.

{¶31} The jury was free to accept or reject any and all of the evidence offered by

Appellant and the State and assess the witness's credibility. “While the jury 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. Craig (Mar. 23, 2000), Franklin App. No. 99AP739,

citing State v. Nivens (May 28, 1996), Franklin App. No. 95APA09–1236 Indeed, the

jurors need not believe all of a witness' testimony, but may accept only portions of it as

true. State v. Raver, Franklin App. No. 02AP–604, 2003–Ohio–958, at ¶ 21, citing State

v. Antill (1964),

, 67,

.; State v. Burke, Franklin App. No. Tuscarawas County, Case No. 2013 AP 05 0021 9

02AP–1238, 2003–Ohio–2889, citing State v. Caldwell (1992),

,

.

{¶32} Additionally, we note that Ohio law does not recognize the defense of

“diminished capacity.” State v. Wilcox (1982),

.

{¶33} Viewing the evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that

Appellant had committed the crime of attempted murder by purposely shooting Ralph

Brown in the head. We hold, therefore, that the state met its burden of production

regarding each element of the crime and, accordingly, there was sufficient evidence to

support Appellant's conviction.

{¶34} Based on the foregoing, we find Appellant's First Assignment of Error not

well-taken and hereby overrule same.

II.

{¶35} In her Second Assignment of Error, Appellant argues that the trial court

erred in failing to address the imposition of court costs in open court. We agree.

{¶36} R.C. §2947.23 provides:

{¶37} “(A)(1)(a) In all criminal cases * * * the judge or magistrate shall include in

the sentence the costs of prosecution, including any costs under [R.C.] 2947.23, and

render a judgment against the defendant for such costs. If the judge or magistrate

imposes a community control sanction or other nonresidential sanction, the judge or

magistrate, when imposing the sanction, shall notify the defendant of both of the

following: Tuscarawas County, Case No. 2013 AP 05 0021 10

{¶38} “(i) If the defendant fails to pay that judgment or fails to timely make

payments towards that judgment under a payment schedule approved by the court, the

court may order the defendant to perform community service * * *.

{¶39} “(ii) If the court orders the defendant to perform the community service, the

defendant will receive credit upon the judgment at the specified hourly credit rate per

hour of community service performed, and each hour of community service performed

will reduce the judgment by that amount.”

{¶40} In the instant case, the trial court failed to address court costs at the

sentencing hearing thereby depriving her of the opportunity to challenge her ability to

pay. The state concedes the trial court's error in failing to mention court costs at the

sentencing hearing.

{¶41} The Supreme Court of Ohio has held that although R.C. §2947.23(A)(1)

mandates that in all criminal cases the court shall include in the sentence the costs of

prosecution, it was error for the trial court to impose those costs without orally notifying

the defendant at the sentencing hearing. State v. Joseph,

, 2010–

Ohio–954,

.

{¶42} The remedy for the omission is to remand the case for the limited purpose

of allowing Appellant an opportunity to move the court for a waiver of the payment of

those costs. Id. at ¶ 23.

{¶43} Appellant’s Second Assignment of Error is sustained, and the case is

remanded to the trial court for the purpose of determining if the defendant should pay

court costs in this case. Tuscarawas County, Case No. 2013 AP 05 0021 11

{¶44} We hereby reverse that portion of the trial court's judgment imposing court

costs, affirm the remainder of the trial court's judgment, and remand the matter to the

trial court for proper imposition of court costs in accordance with R.C. 2947.23(A)(1).

By: Wise, J.

Gwin, P. J., and

Baldwin, J., concur.

JWW/d 0225