[Cite as State v. Brannon,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, : CASE NO. CA2016-05-096 Plaintiff-Appellee, : OPINION : 2/21/2017 - vs - :

DEANNA D. BRANNON, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2015-09-1395

Michael T. Gmoser, Butler County Prosecuting Attorney, Willa Concannon, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Scott N. Blauvelt, 315 South Monument Street, Hamilton, Ohio 45011, for defendant- appellant

M. POWELL, J.

{¶ 1} Defendant-appellant, Deanna D. Brannon, appeals her conviction and sentence

in the Butler County Court of Common Pleas.

{¶ 2} On October 21, 2015, the Butler County Grand Jury returned a one-count

indictment charging Brannon with unlawful sexual conduct with a minor in violation of R.C.

2907.04(A). The matter proceeded to a jury trial and the jury rendered a verdict of not guilty Butler CA2016-05-096

for the charged offense and a verdict of guilty for the lesser included offense of attempted

unlawful sexual conduct with a minor. The jury further found Brannon was ten or more years

older than the victim, J.N., at the time of the offense. At trial, the state presented the

testimony of J.N.'s mother, E.N., and Detective Daniel Turner of the Butler County Sheriff's

Office, in addition to a recorded interview between sheriff's office detectives and Brannon.

The defense presented the testimony of Brannon, Brannon's mobile home park manager,

and Brannon's father, David Brannon.

{¶ 3} The evidence presented at trial revealed the following facts. Brannon, who was

35 at the time of the charged offense, lived in a mobile home park in Lemon Township, Butler

County, with her parents and her minor daughter. J.N. was 14 years old at the time of the

offense and resided in the same mobile home park with his 16-year-old brother, 11-year-old

sister, E.N., and E.N.'s fiancé. E.N.'s daughter and Brannon's daughter were friends. On

June 27, 2015, Brannon, E.N., the children, and one of the children's friends went to the local

area YMCA to swim in the early evening. On the drive home, E.N. stopped to pick up

whiskey for the evening. The group then proceeded to E.N.'s mobile home. The state and

the defense presented different versions of the facts and circumstances of what transpired at

E.N.'s mobile home.

{¶ 4} E.N. testified that once the group returned to her mobile home, she made food

for the children, who then watched a movie and went to bed. E.N. and Brannon drank

whiskey and listened to music. Brannon frequently refilled her drink and became "so drunk,

she was falling all over [the] place * * *." Sometime during the evening, Brannon went into

the kitchen and tried "to grab a hold of [J.N.'s] leg," but J.N. pushed her hand away.

Brannon's antics also included attempting to climb out of a window to fight someone. Due to

Brannon's behavior, E.N. and her 16-year-old son, R.N., physically prevented Brannon from

leaving the mobile home by blocking the front door.

-2- Butler CA2016-05-096

{¶ 5} After the children went to bed, the first alleged sexual contact occurred between

J.N. and Brannon. During her interview with detectives, Brannon stated that while she was

putting her daughter to bed in the top bunk of the children's room, J.N. reached out from the

bottom bunk and rubbed his hand against her vagina briefly on the outside of her clothing.

{¶ 6} E.N. further testified that Brannon eventually fell asleep in the living room,

which is visible from E.N.'s bedroom. E.N. periodically looked out into the living room

throughout the night to check on Brannon. At one point, E.N. looked and did not see

Brannon, so she walked out to the living room and heard J.N. say "get off me." E.N. saw

Brannon wearing only a sweatshirt and on top of J.N., who was also naked from the waist

down. E.N. saw Brannon's vagina and J.N.'s penis touching, but was unable to clearly see

whether penetration had occurred. In response, E.N. grabbed Brannon by her ponytail,

pulled her off J.N., and dragged her across the floor. Brannon put on her clothing, and E.N.

took Brannon and Brannon's daughter to Brannon's mobile home. Upon arrival at Brannon's

mobile home, E.N. informed Brannon's father of what she witnessed. Brannon's father

testified that E.N. and Brannon both appeared to be intoxicated.

{¶ 7} In her interview with the sheriff's office detectives, Brannon stated the entire

group was consuming alcohol at E.N.'s mobile home, including the minor children. Everyone

was "partying and having fun," and that J.N. was flirting with her throughout the evening,

including repeatedly whispering in her ear. When questioned about what transpired in the

kitchen, Brannon verbally agreed with the detectives' characterization of the incident that "this

was a consensual thing * * * that stopped before it started." In so doing, Brannon stated she

"did not force nothing [sic], and that there was nobody in the kitchen besides her and J.N."

Brannon explained that she was on top of the counter with her feet around J.N.'s back and

they were rubbing against each other. The two kissed once and J.N. removed both of their

pants. Next, Brannon stated she was unsure whether the tip of J.N.'s penis or his finger -3- Butler CA2016-05-096

penetrated her vagina, but she felt pressure and it was "the very beginning" with "no thrusting

at all," and "then he jumped away" when E.N. entered the kitchen.

{¶ 8} Brannon's interview version of events was partly corroborated and partly

contradicted by her trial testimony. Brannon testified that J.N., who she knew to be less than

16 years old, had been flirting with her all day by rubbing her shoulders and whispering in her

ear. Brannon described this conduct as "kind of hanging on me, following me around."

Brannon testified that she had been "passed out on the floor" of the living room until J.N.

woke her up in the middle of night and asked her to follow him into the kitchen. In the

kitchen, J.N. was trying to push himself up against her and "ripped" off both of their pants.

Brannon denied any consensual sexual acts, such as kissing, rubbing J.N.'s penis, or

penetration, and explained that she repeatedly told J.N. that she had no interest in having

sex with him. Brannon testified that she remained standing while J.N. ripped off her pants

until E.N. came into the kitchen and J.N. jumped back, pulling up his pants.

{¶ 9} As stated above, the jury found Brannon guilty of the lesser included offense of

attempted unlawful sexual conduct with a minor and that Brannon was ten years older than

J.N. at the time of the offense. The trial court sentenced Brannon to six months

imprisonment, imposed five years of postrelease control, and ordered her to register as a

Tier II sex offender. At the sentencing hearing, the trial court stated it "will not impose a fine

or that you pay court costs * * * [and that t]he Court has considered [Brannon's] financial

resources and ability to pay financial sanctions both now and in the future." However, in its

judgment entry, the trial court ordered Brannon "to pay: [c]osts of prosecution, supervision

and any supervision fees permitted pursuant to Revised Code Section 2929.18(A)(4)."

{¶ 10} Brannon now appeals from her conviction and sentence.

{¶ 11} Assignment of Error No. 1:

{¶ 12} THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A CONVICTION FOR -4- Butler CA2016-05-096

MURDER [SIC] IN COUNT ONE, AND THE VERDICT ON THIS COUNT WAS CONTRARY

TO THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 13} Brannon was convicted of attempted unlawful sexual conduct with a minor.

Pursuant to R.C. 2907.04, one is guilty of unlawful sexual conduct with a minor if the person

"who is eighteen years of age or older * * * engage[s] in sexual conduct with another, who is

not the spouse of the offender, when the offender knows the other person is thirteen years of

age or older but less than sixteen years of age, or the offender is reckless in that regard."

The offense is a third-degree felony "if the offender is ten or more years older than the other

person." R.C. 2907.04(A)(3). Additionally, one is guilty of an attempt when one "purposely

or knowingly * * * engage[s] in conduct that, if successful, would constitute or result in the

offense." R.C. 2923.02. "A person acts knowingly, regardless of purpose, when the person

is aware that the person's conduct will probably cause a certain result or will probably be of a

certain nature." R.C. 2901.22(B).

{¶ 14} Brannon contends the trial court erred by overruling her Crim.R. 29 motion for

acquittal at the close of the state's evidence because there was insufficient evidence to

establish every element of the attempted unlawful sexual conduct with a minor charge

beyond a reasonable doubt. Brannon argues there was insufficient evidence to identify J.N.,

as opposed to R.N., E.N.'s other son, as the victim of the offense. Whether the victim of the

offense is J.N., as opposed to R.N., is significant, as R.N. was 16 years old at the time of the

offense and an element of the offense is that the victim be "less than sixteen years of age."

{¶ 15} Throughout her testimony, E.N. repeatedly referred to the victim of the offense

as her "son." Brannon argues this identification is insufficient because R.N. was also present

in the mobile home during the pertinent time frame. Additionally, Brannon claims there was

insufficient evidence to demonstrate a voluntary act by Brannon, as required for criminal

liability. Finally, Brannon argues her conviction for attempted unlawful sexual conduct with a -5- Butler CA2016-05-096

minor was against the manifest weight of the evidence for the same reasons.

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

are both quantitatively and qualitatively different." State v. Thompkins,

(1997), superseded by constitutional amendment on other grounds as stated by State v.

Smith,

(1997). Sufficiency of the evidence is the legal standard

applied to determine whether the case may go to the jury or whether the evidence is legally

sufficient to support the jury verdict as a matter of law.

citing Black's Law Dictionary (6th

Ed. 1990) 1433. A conviction based on legally insufficient evidence constitutes a denial of

due process. Tibbs v. Florida,

,

(1982), citing Jackson v.

Virginia,

,

(1979). 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,

(1991), superseded by constitutional amendment

on other grounds as stated by

. In evaluating the sufficiency of the evidence,

this court "defer[s] to the trier of fact on questions of credibility and the weight assigned to the

evidence." State v. Kirkland,

,

. "Although a court

of appeals may determine that a judgment of a trial court is sustained by sufficient evidence,

that court may nevertheless conclude that the judgment is against the weight of the

evidence."

.

{¶ 17} In contrast to a sufficiency of the evidence challenge, a manifest weight of the

evidence challenge examines the "inclination of the greater amount of credible evidence,

offered at a trial, to support one side of the issue rather than the other." State v. Barnett,

12th Dist. Butler No. CA2011-09-177,

, ¶ 14. In making this determination, a

reviewing court looks at the entire record, weighs the evidence and all reasonable inferences,

considers the credibility of the witnesses, and determines whether in resolving the conflicts in -6- Butler CA2016-05-096

the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of

justice that the conviction must be reversed and a new trial ordered. State v. Morgan, 12th

Dist. Butler Nos. CA2013-08-146 and CA2013-08-147,

. "An appellate

court will overturn a conviction due to the manifest weight of the evidence only in

extraordinary circumstances when the evidence presented at trial weighs heavily in favor of

acquittal." State v. Couch, 12th Dist. Butler No. CA2016-03-062,

.

{¶ 18} "A reversal based on the weight of the evidence * * * can occur only after the

State both has presented sufficient evidence to support conviction and has persuaded the

jury to convict." (Emphasis added.)

; see also State v. Jones, 12th Dist. Butler

No. CA2012-03-049,

(stating that finding a conviction is supported by

the manifest weight of the evidence is also dispositive of the issue of sufficiency). Therefore,

"[b]ecause sufficiency is required to take a case to the jury, a finding that a conviction is

supported by the weight of the evidence must necessarily include a finding of sufficiency."

State v. Hart, 12th Dist. Brown No. CA2011-03-008,

, ¶ 43.

{¶ 19} After a thorough review of the record, we find the state presented sufficient

evidence that would allow the jury to conclude beyond a reasonable doubt that Brannon

committed the offense of attempted unlawful sexual conduct with a minor and that Brannon

was ten years older than the victim at the time of the offense. Furthermore, we do not find

the jury clearly lost its way and created such a manifest miscarriage of justice to require

reversal of Brannon's conviction. E.N.'s testimony identifies three instances where J.N. is

referred to by name.

{¶ 20} Detective Turner testified that he conducted two interviews as a part of his

investigation into the offense. One with Brannon, and the other with J.N. Additionally, on

cross-examination, Detective Turner discussed that he relied upon the police report and

J.N.'s interview to formulate his questions and approach to Brannon's interview. Detective -7- Butler CA2016-05-096

Turner stated his interrogation technique included communicating to Brannon that he had

previously spoken with J.N. and E.N. Finally, during redirect, Detective Turner explained that

there was no indication in his investigation that anyone beside Brannon and J.N. were in the

kitchen until E.N. entered. Based on the testimony of E.N. and Detective Turner, the state

produced the necessary direct and circumstantial evidence for the jury to reasonably

conclude that J.N. was the minor victim.

{¶ 21} Moreover, E.N.'s testimony alone is sufficient evidence to support the jury's

finding that Brannon committed a voluntary act to support criminal liability. Brannon's

argument relies upon her testimony that she was not a willing participant in the kitchen

incident. Specifically, Brannon testified that she told J.N. no multiple times, and that J.N.

forced her up against the counter and ripped off her pants. However, as detailed above,

there is evidence to the contrary. E.N. testified she observed Brannon on top of her son with

their genitals touching, while both Brannon and her son were naked from the waist down.

Moreover, Brannon's statements to the sheriff's office detectives are substantive evidence of

what occurred and directly contradict Brannon's testimony that J.N. forced himself on

Brannon. Brannon's statements further establish slight penetration by either J.N.'s penis or

finger, or at least an attempt to penetrate with J.N.'s penis or finger that was interrupted when

E.N. entered the kitchen and caught J.N. and Brannon.

{¶ 22} Therefore, Brannon's conviction for attempted unlawful sexual conduct with a

minor was supported by sufficient evidence and not against the manifest weight of the

evidence. Accordingly, Brannon's first assignment of error is overruled.

{¶ 23} Assignment of Error No. 2:

{¶ 24} APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AT

TRIAL.

{¶ 25} Brannon claims her trial counsel was ineffective for failing to object to the -8- Butler CA2016-05-096

admission of Brannon's recorded statements to police because the state failed to establish

the corpus delicti of the charged offense by not establishing that J.N., a child under 16 years

of age, was the victim. Brannon further argues she was denied effective assistance of trial

counsel because Brannon's counsel called her as a witness, whose testimony established

J.N. as the victim.

{¶ 26} To prevail on an ineffective assistance of counsel claim, an appellant must

establish: (1) that his trial counsel's performance was deficient; and (2) that such deficiency

prejudiced the defense to the point of depriving the appellant of a fair trial. Strickland v.

Washington,

,

(1984); State v. Ullman, 12th Dist.

Warren No. CA2002-10-110,

, ¶ 43. Trial counsel's performance will not be

deemed deficient unless it "fell below an objective standard of reasonableness."

. To show prejudice, a defendant must prove there exists "a reasonable probability

that, but for counsel's unprofessional errors, the result of the proceeding would have been

different." State v. Wilson, 12th Dist. Madison No. CA2013-10-034,

.

A defendant's failure to satisfy one part of the Strickland test negates a court's need to

consider the other. State v. Hurst, 12th Dist. Brown No. CA2014-02-004,

.

{¶ 27} The "corpus delicti" of a crime means the body or substance of the crime, and it

consists of two elements: (1) the act, and (2) the criminal agency of the act. State v.

Maranda,

(1916), paragraph one of the syllabus. "It has long been

established as a general rule in Ohio that there must be some evidence outside of a

confession, tending to establish the corpus delicti, before such confession is admissible."

at paragraph two of the syllabus.

{¶ 28} "'The doctrine * * * was born out of great caution by the courts, in consideration

of certain cases of homicide wherein it had turned out that by reason of the failure of the -9- Butler CA2016-05-096

government to prove the death of the [alleged victim] * * * it so happened that such [alleged

victim] sometimes survived the person accused as his murderer.'" State v. Morgan, 12th

Dist. Clermont No. CA2013-03-021,

, quoting

.

However, in light of procedural safeguards granted to defendants in modern criminal practice,

"the practicality of the rule has come into serious question." State v. Gray, 12th Dist. Butler

No. CA2011-09-176,

, ¶ 27. Consequently, the Ohio Supreme Court has

indicated that although the corpus delicti rule remains applicable, it need not be applied "with

a dogmatic vengeance." Morgan at ¶ 16. The burden on the state to provide some evidence

of the corpus delicti is minimal and it is sufficient if there is some evidence outside of the

confession that tends to prove some material element of the crime charged. State v. Sturgill,

12th Dist. Clermont No. CA2004-02-008,

.

{¶ 29} Based on our review, we find Brannon's arguments with respect to the doctrine

of corpus delicti are without merit; thus, Brannon's trial counsel was not deficient for failing to

raise the issue at trial. As previously noted, the state presented ample evidence of Brannon's

guilt through E.N.'s testimony explaining she observed and interrupted Brannon on top of her

son while both of them were naked from the waist down with their genitals touching. This

testimony alone meets the minimal burden of providing some evidence of the corpus delicti of

the crime charged because it tends to prove Brannon engaged in conduct that, if successful,

would have resulted in sexual conduct. See R.C. 2907.01 (stating penetration, however

slight, is sufficient to constitute sexual conduct). E.N.'s testimony tends to prove that had

E.N. not entered the kitchen at the exact moment she did, then penetration would have likely

resulted because J.N. and Brannon's naked genitals were touching and were on the verge of

penetration.

{¶ 30} Furthermore, in establishing the corpus delicti, it is not necessary to prove every

element of the crime charged; therefore, contrary to Brannon's claim otherwise, it was not - 10 - Butler CA2016-05-096

necessary for the state to prove J.N. was the victim before the admission of Brannon's police

interview. Thus, Brannon's trial counsel's choice to not raise the issue at trial does not

constitute deficient performance. See State v. Graham, 12th Dist. Warren No. CA2013-07-

066, ¶ 21 ("counsel is not deficient for failing to raise a meritless issue"). Moreover, because

it was unnecessary to prove J.N. was the victim to establish the corpus delicti before the

admission of the police interview – even if Brannon's testimony established J.N. as the victim

– trial counsel's choice to call her as a witness does not constitute deficient performance.

{¶ 31} Accordingly, Brannon's second assignment of error is overruled.

{¶ 32} Assignment of Error No. 3:

{¶ 33} APPELLANT'S SENTENCE WAS CONTRARY TO LAW.

{¶ 34} Brannon claims the trial court erred in its judgment entry by holding Brannon

responsible for the costs of prosecution when the trial court expressly declined to impose

such costs at the sentencing hearing. The state concedes this error. However, the state and

Brannon differ in the remedy sought to correct the asserted error. Brannon requests that this

court sustain the assignment of error, reverse and vacate the order to pay court costs, and

remand the matter to the trial court for the limited purpose of issuing a nunc pro tunc entry.

In the alternative, Brannon requests we remand the matter to the trial court for the purpose of

holding a hearing to determine whether the court intended to order court costs, and if so, to

afford Brannon the opportunity to seek a waiver of those costs. The state concurs with

Brannon's alternative remedy and argues that if the trial court meant to impose court costs,

then Brannon must be notified on the record and have the opportunity to move the court for a

waiver of costs. See State v. Joseph,

,

(remanding case to trial court for limited purpose of allowing defendant to move for a waiver

of court costs where trial court failed to provide such opportunity before imposing court

costs). - 11 - Butler CA2016-05-096

{¶ 35} R.C. 2953.08(G)(2) sets forth the standard of review for all felony sentences.

State v. Crawford, 12th Dist. Clermont No. CA2012-12-088,

. Pursuant

to R.C. 2953.08(G)(2), when hearing an appeal of a trial court's felony sentencing decision,

"[t]he appellate court may increase, reduce, or otherwise modify a sentence that is appealed

under this section or may vacate the sentence and remand the matter to the sentencing court

for resentencing."

{¶ 36} As explained in Marcum, "[t]he appellate court's standard for review is not

whether the sentencing court abused its discretion." State v. Marcum,

,

. Rather, pursuant to R.C. 2953.08(G)(2), an appellate court may only

"increase, reduce, or otherwise modify a sentence * * * or may vacate the sentence and

remand the matter to the sentencing court for resentencing" if the court finds by clear and

convincing evidence "(a) [t]hat the record does not support the sentencing court's findings * *

*[,]" or "(b) [t]hat the sentence is otherwise contrary to law." R.C. 2953.08(G)(2)(a)-(b). A

sentence is not "clearly and convincingly contrary to law where the trial court considers the

principles and purposes of R.C. 2929.11, as well as the factors listed in R.C. 2929.12,

properly imposes postrelease control, and sentences the defendant within the permissible

statutory range." State v. Eversole, 12th Dist. Butler Nos. CA2016-01-025 and CA2016-01-

026,

.

{¶ 37} R.C. 2947.23(A)(1)(a) provides that a trial court "shall include in the sentence

the costs of prosecution, including any costs under [R.C. 2947.231], and render a judgment

against the defendant for such costs." However, despite the mandatory language of the

statute, a trial court may waive the payment of costs.

. This imposition of

court costs is civil in nature and distinct from a criminal punishment. Id. at ¶ 20. An error by

the trial court in imposing court costs "does not create [a] taint on the criminal sentence * *

*[,]" but rather, "only [affects] the court and the defendant." Id. at ¶ 21. Furthermore, a trial - 12 - Butler CA2016-05-096

court's inadvertent error does not render the sentence contrary to law; rather, "'such a clerical

mistake may be corrected by the court through a nunc pro tunc entry to reflect what actually

occurred in open court.'" See, e.g., State v. Chisenhall, 12th Dist. Clermont Nos. CA2015-

07-055 and CA2015-07-063,

(stating a trial court's failure to include

necessary statutory findings in judgment entry is a clerical error that may be corrected with a

nunc pro tunc entry when the trial court made such findings at the sentencing hearing),

quoting State v. Bonnell,

,

.

{¶ 38} Here, the trial court expressly stated at the sentencing hearing: "[t]he Court will

not impose a fine or that you pay court costs in this case. The Court has considered your

financial resources and ability to pay financial sanctions both now and in the future."

However, in the judgment entry ordered Brannon "to pay: [c]osts of prosecution, supervision

and any supervision fees permitted pursuant to Revised Code Section 2929.18(A)(4)."

{¶ 39} The circumstances in this case appear to be akin to the circumstances in

Chisenhall where the trial court made a finding in open court, and then, committed a clerical

error contrary to its previous finding by imposing court costs in its judgment entry. However,

"[i]t is well settled that a court speaks only through its journal entries." State v. Marcum, 12th

Dist. Nos. CA2005-10-431 and CA2005-10-446,

, citing State v. Mincy,

(1982).

{¶ 40} We are unable to determine whether the trial court intended to impose court

costs due to the discrepancy between the trial court's indication at sentencing that it was

waiving imposition of court costs and the sentencing entry's imposition of court costs. The

sentence did not become a final order until the sentencing entry was journalized. Therefore,

even though the trial court indicated at the sentencing hearing that court costs would be

waived, it remained free to impose court costs. However, if the trial court intends to impose

court costs it must do so in Brannon's presence. See Crim.R. 43(A) (requiring defendant's - 13 - Butler CA2016-05-096

physical presence during the imposition of sentence);

(remanding to trial court

to conduct further sentencing hearing where defendant may seek waiver of court costs).

Therefore, we remand this matter to the trial court. Upon remand the trial court shall either

conduct a further sentencing hearing in the presence of Brannon to make a determination

with respect to the imposition of court costs or simply issue a nunc pro tunc sentencing entry

waiving court costs consistent with its indication at Brannon's sentencing hearing.

{¶ 41} Judgment affirmed in part, reversed in part, and remanded to the trial court for

further proceedings.

HENDRICKSON, P.J. and RINGLAND, J., concur.

- 14 -