[Cite as State v. Brown,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : -vs- : : Case No. 2018CA00107 AULETTI DALANE BROWN, JR. : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Stark County Court of Common Pleas, Case No.2017CR2362

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: June 3, 2019

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO GEORGE URBAN StarkCounty Prosecutor 116 Cleveland Avenue NW, Ste. 808 BY: MICHAEL BICKIS Canton, OH 44702 110 Central Plaza South Suite 510 Canton, OH 44702 Stark County, Case No. 2018CA00107 2

Gwin, P. J.

{¶1} Appellant Auletti Dalane Brown, Jr. [“Brown”] appeals his conviction and

sentence after a jury trial in the Stark County Court of Common Pleas.

Facts and Procedural History

{¶2} Y.W.'s and his fiancée M.L. lived on Ingram Avenue, SW, Canton, Stark

County, Ohio, with her four children, including a three-year-old son that she had with

Y.W. M.L. is Brown’s cousin.

{¶3} On December 10, 2017, around seven o'clock in the evening, Y.W. and M.

L. were at home with their children, drinking alcohol and smoking marijuana. Y.W. left

and walked to Maggiore's Drive-thru to purchase alcohol. At approximately the same time,

Brown left his home on Maryland Avenue, SW to go to Maggiore's Drive-thru to purchase

beer and cigarettes. Brown testified that when he left home, he put his knife in his pants

pocket because he always carried a knife with him when he left his house.

{¶4} Brown and Y.W. got into a verbal and physical altercation outside the

Maggiore's drive thru on Dueber and 9th Street in Canton, Ohio. Y.W. pushed Brown to

the ground and accused Brown of slashing his car tires. Brown called 9-1-1, told the

dispatcher never mind and hung up. Both left the area and walked to their respective

homes, which were within blocks of each other. Surveillance cameras in the area

captured portions of this altercation.

{¶5} M. L. testified that Brown had been told to stay away from their home

"because his drinking leads to violence.” 1T. at 1871. M.L. testified when Y.W. returned

1 For clarity sake, the transcript of the jury trial will be referred to by volume and page number as “T.” Stark County, Case No. 2018CA00107 3

from the drive thru he was angry. Y.W. told her that he had pushed Brown down and that

if Brown was not her cousin he would have really punched on him. 1T.at 194. M.L.

testified that she never heard a knock on the door that day, but heard Brown outside

hollering and screaming, "Mother fucker.” 1T.at 208; 3T. at 535. M.L. testified that she

saw Y.W. head for the door and she told him not to go, but Y.W. said, "I'm tired of him.”

M.L. testified that Brown came up the steps with his hands in his pockets. Y.W. took a

swing at Brown and missed. She then saw Y.W. fall to the ground. M.L. testified that

when Y.W. walked back up the steps, he was bleeding like a faucet and said, "He stabbed

me Bae" and fell. 1T. at 197. Then she heard Brown say "Yeah, Nigga" and then Brown

calmly walked away.

{¶6} On his way home, Brown hid the knife in the bushes by his neighbor's

house. Officers responding to Brown's 9-1-1 call, saw Brown, and observed that he fit

the physical description of Y.W.'s assailant. The officers tried to talk with Brown, but

Brown put his head down and ran. The officers eventually cornered Brown and took him

into custody. The arresting officers took photos of Brown's neck and abdomen and did

not observe any physical injuries to his neck. When Brown was initially questioned by the

police he claimed he did not know Y.W. but later admitted he went to the house to speak

with "Yoshie" and that he stabbed Y.W. claiming it was in self-defense. 3T. at 627. He

also told the detectives, "No one gets over on Auletti Brown.” At trial Brown testified that

he was being strangled when he stabbed Y.W.

{¶7} Dr. Renee Robinson, a forensic pathologist at the Stark County Coroner's

Office, performed the autopsy on Y.W. Dr. Robinson testified that she observed defensive

wounds on Y.W.'s forearms. She stated that it would have been difficult for a person to Stark County, Case No. 2018CA00107 4

sustain the injuries unless they were in a defensive position. She testified that the

puncture wound to Y.W.’s' heart was the result of a sharp force to Y.W.'s arm and chest

in a single action and consistent with the knife in evidence. 3T. at 471-476. She testified

that the puncture to Y.W.’s heart resulted in excessive bleeding and that he lost

approximately 2 liters of blood as the result. Dr. Robinson testified that Y.W. died because

of a sharp force injury to the chest.

{¶8} At trial, Brown represented himself, called witnesses and testified on his

own behalf. Throughout the proceedings, Brown maintained that he acted in self-

defense. After the presentation of evidence, Brown requested and was granted a jury

instruction on self-defense.

{¶9} The jury found Brown guilty of murder and felonious assault. The court

found Brown guilty of the Repeat Violent Offender Specification. The state agreed that

the felonious assault conviction merged into the murder conviction and elected for

sentencing on the murder charge.

{¶10} The court imposed a 15 year to life sentence of the murder conviction and

a 10-year sentence for the repeat violent offender to run consecutively for an aggregate

sentence of 25 years to life in prison.

Assignments of Error

{¶11} Brown, through counsel, raises two Assignments of Error,

{¶12} “I. THE TRIAL COURT ERRED BY DENYING APPELLANT'S MOTION TO

SUPPRESS.

{¶13} “II. APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.” Stark County, Case No. 2018CA00107 5

I.

{¶14} In his First Assignment of Error, Brown contends that the trial court erred by

overruling his motion to suppress Brown’s statement to the police. Subsumed within this

generalized objection are three challenges to the trial court ruling. Specifically, Brown

contends that: (1). Officers continued to question him after he asked for an attorney; (2)

the Officers failed to re-advise Brown of his Miranda rights after a three minute break in

questioning and (3) Brown did not voluntarily waive his Miranda rights.

STANDARD OF APPELLATE REVIEW

{¶15} Appellate review of a motion to suppress presents a mixed question of law

and fact. State v. Burnside,

,

,

. When ruling on a motion to suppress, the trial court assumes the role of trier of

fact and is in the best position to resolve questions of fact and to evaluate witness

credibility. See State v. Dunlap,

,

,

;

State v. Fanning,

,

(1982). Accordingly, a reviewing

court must defer to the trial court's factual findings if competent, credible evidence exists

to support those findings. See

Dunlap, supra; State v. Long,

,

(4th Dist. 1998); State v. Medcalf,

,

(4th Dist. 1996). However, once this Court has accepted those facts as

true, it must independently determine as a matter of law whether the trial court met the

applicable legal standard. See

citing State v. McNamara,

,

(4th Dist. 1997); See, generally, United States v. Arvizu,

,

,

(2002); Ornelas v. United States,

,

,

(1996). That is, the application of the law to the trial Stark County, Case No. 2018CA00107 6

court's findings of fact is subject to a de novo standard of review

Moreover, due weight should be given “to inferences drawn from those facts by resident

judges and local law enforcement officers.”

,

.

ISSUES FOR APPEAL.

A. Whether Brown invoked his right to counsel during custodial

interrogation by Detective George.

{¶16} Brown first contends that all the statements he made to the Canton police

detectives while in custody on December 10, 2017 should have been suppressed,

because his Fifth Amendment right to counsel during custodial interrogation, see Miranda

v. Arizona,

,

,

(1966), was violated when

Canton police interrogated him after he had invoked his right to counsel. A video of

Brown’s interview with the detectives was played during the hearing on Brown’s Motion

to Suppress and during his jury trial. State’s Exhibit 1.2

{¶17} If a suspect in custody requests counsel, “interrogation must cease until an

attorney is present.”

Moreover,

When an accused has invoked his right to have counsel present during

custodial interrogation, a valid waiver of that right cannot be established by

showing only that he responded to further police-initiated custodial

interrogation even if he has been advised of his rights. * * * [A]n accused,

* * * having expressed his desire to deal with the police only through

counsel, is not subject to further interrogation by the authorities until counsel

2 For clarity, the transcript of the Apr. 19, 2018 hearing on Brown’s Motion to Suppress will be referred to as “S.H.” Stark County, Case No. 2018CA00107 7

has been made available to him, unless the accused himself initiates further

communication, exchanges, or conversations with the police.

Edwards v. Arizona,

,

,

(1981)(Footnote omitted.); State v. Trench, Oh. Sup. No. 2016-0899,

(Dec. 26, 2018), ¶25.

{¶18} However, “the suspect must unambiguously request counsel.” (Emphasis

added.) Davis v. United States,

,

,

(1994). “If the suspect’s statement is not an unambiguous or unequivocal request for

counsel, the officers have no obligation to stop questioning him.”

,

. The suspect “must articulate his desire to have counsel present sufficiently

clearly that a reasonable police officer in the circumstances would understand the

statement to be a request for an attorney.”

,

,

.

Moreover, if the suspect does request counsel, police may still interrogate him if—but only

if—he initiates a conversation.

,

; Trench,

¶756.

1. December 10, 2017 Brown is taken into custody.

{¶19} Detective George testified that he knew that Brown had a lengthy criminal

history and, that Brown was familiar with the criminal justice system. Detectives George

and Walker placed Brown in an interview room with video and audio recording

capabilities.

{¶20} Brown was secured and patted down for weapons and remained in his

street clothing. Prior to the interview, Brown's handcuffs were removed, and, he was

offered something to drink. SH. at 14-15. Stark County, Case No. 2018CA00107 8

{¶21} Brown asked Detective George what charges had been filed against him.

Brown further let the officers know that he was familiar with the system and his

constitutional rights stating, "I'm not the average stupid fucker-keep it gangster, keep it

real"; "I got a lawyer, trust me, it ain't even like that."

{¶22} Detective Walker gave Brown a Miranda warning. S.H. at 23. Brown was

then asked if he understood what had been read to him, to which he responded, "yes

sir.” He was asked if he had any questions about the Miranda warning to which he

responded "no.” He was then asked to read aloud a section of the warning prior to

questioning. Brown read the following statement, "I have had the above Constitutional

Rights read to me and I fully understand them and I do hereby waive my rights.” Brown

said, "I know what it means" and signed a written waiver of rights form. State’s Exhibit 2.

Brown acknowledges that he was read his Miranda right, understood his rights and signed

a written waiver of Miranda rights form. [Appellant’s Brief at 7-8].

2. Brown Contends That He Invokes His Right to Counsel

{¶23} At 10:19:45 in the video, the following exchange took place between Det.

George and Brown:

Brown: What happens if do this- what happens if I say-

Well-Get me a lawyer?

Sgt. George: You want lawyer?

Brown: I can call my lawyer right now.

Sgt. George: Do you want a lawyer-

Brown: Yeah

Sgt. George: or do you want to talk with us? Stark County, Case No. 2018CA00107 9

Brown: It just seems like you want to talk to me, but you

don't want me to talk to you.

Sgt. George: I don't understand that.

Brown: You want me to talk to you– no- you want to talk

to me, but you don't want me to talk to you.

Sgt. George: Well, I am asking you questions and I want

answers.

Brown: Yeah, I want answers too. So, we just sitttin'

here-

Sgt. George: You want an answer of what I'm going to charge

you with, but I don't know yet until I talk to you. Let's put it this way-Ok

Brown: All I am asking is this one question- all I am

asking is this one question and I'll tell you everything that happened

Sgt. George: Do you want to know what I am going to-

Brown: Listen-

Sgt. George: charge you with-yes or no?

Brown: Yeah.

Sgt. George: Ok, if you don't say another word to me and tell

me “I'm not going to talk to you,” I'm going to charge you with murder tonight

because [Y.W.] is dead.

Now, if you want to tell me your side of what

happened, that could change, but as of right now, [Y.W.] is dead, he was Stark County, Case No. 2018CA00107 10

stabbed, he is not coming back to life- and that's what I am going to charge

you with if you don't want to say another word.

If you want to talk to me and tell me your side of

what happened, it could change

Brown: It still don't-

Sgt. George: I wasn't there

Brown: It still don't mean the same thing- but I'm still

going to say it-

Sgt. George: Ok.

Brown: My love go out to everybody, my family, but he

didn't make it- So, I'm going to say it like this-this is what happened

Brown: (inaudible) make it.

Sgt. George: No

Brown: I need a couple seconds.

Sgt. George: Would you like a glass of water?

Brown: (inaudible) no. Give me a couple of seconds

and I’ll tell you everything.

Sgt. George: Ok.

{¶24} Brown argues that when the detective said, “Do you want a lawyer or do

you want to talk with us? Brown responded, “Yeah,” he made an “unequivocal request

for an attorney” and that thereafter, the police should have stopped all questioning. The

trial court found that Brown did not “unequivocally and unambiguously” ask for an

attorney. Stark County, Case No. 2018CA00107 11

{¶25} “In determining whether a reasonable officer conducting the interview

would have understood that [the suspect] was asking for an attorney, we may consider

what came before the request, but may not look to [the suspect’s] subsequent statements

to determine whether the initial request was ambiguous.” (Emphasis deleted.) Tolliver v.

Sheets,

(6th Cir. 2010), citing Smith v. Illinois,

,

,

(1984). But, even then, a suspect’s alleged invocation must

be examined “‘not in isolation but in context.’ ” State v. Cepec,

, 2016-

Ohio-8076,

, quoting State v. Murphy,

,

(2001).

{¶26} “If a suspect’s statement is not an unambiguous or unequivocal request for

counsel, the officers have no obligation to stop questioning him.” Davis [v. United States,

] at 461-62. State v. Brown,

,

,

, ¶ 18. The officers also have no obligation to ask clarifying questions to ascertain if

the suspect is attempting to invoke his right to counsel.

. Relying on

Davis, the Supreme Court of Ohio held,

If the suspect says something that may or may not be an invocation

of the right, police may continue to question him; they need not treat the

ambiguous statement as an invocation or try to clear up the ambiguity. See

Ross, 203 Wis.2d at 75–76, 552 N.W.2d at 432, and fn. 4 (citing cases);

State v. Owen (Fla. 1997),

, 717–718; State v. King

(Me. 1998),

.

State v. Murphy,

,

,

(emphasis

added). Stark County, Case No. 2018CA00107 12

{¶27} In the case at bar, the ambiguity arises because both Detective George and

Brown were speaking at the same time. Detective George testified that he was in the

middle of finishing his sentence when Brown responded, “Yeah.” S.H. at 43. Brown

asked for and was given a break. The detectives left the interview room for almost three

minutes. S.H. at 33. When the detectives returned, Sgt. George asked Brown to tell him

what happened. Brown thereafter admitted to stabbing Y.W. explaining that he had acted

in self-defense.

{¶28} When reviewing the video evidence of Brown’s statements concerning

counsel we do not find that he clearly or unambiguously invoked his right to counsel. At

best, a reasonable officer in Sgt. George’s position would have thought that Brown might

be asking to speak with counsel, or might be saying that he would speak with the

detectives. This does not satisfy the clear and unambiguous standard set forth in Davis,

,

,

. Because Brown’s statement was not a

clear, unambiguous request for legal counsel, the trial court did not error in overruling

Brown’s motion to suppress on that basis.

B. Whether the officers were required to re-advise Brown of his Miranda

rights after a three-minute break in questioning.

{¶29} Brown next argues that he invoked his right to counsel. After the

officers took a short break from questioning, they resumed questioning without re-

advising Mr. Brown of his Miranda rights.

{¶30} After learning that Y.W. had died, Brown began to sob. Brown then stated,

“I’m gonna say it like this. This is what happened.” Brown began sobbing and told the

detective, “I need a couple seconds and then I’ll tell you everything.” The detectives left Stark County, Case No. 2018CA00107 13

the interview room for almost three minutes. S.H. at 33. When the detectives returned,

Sgt. George asked Brown to tell him what happened. Brown thereafter admitted to

stabbing Y.W. after retrieving a knife from Brown’s home. Brown explained that he had

acted in self-defense.

{¶31} In Berghuis v. Thompkins,

,

,

(2010), the U.S. Supreme Court found no Miranda violation where the suspect

made a statement nearly three hours after receiving his Miranda warning:

If Thompkins wanted to remain silent, he could have said nothing in

response to Helgert's questions, or he could have unambiguously invoked

his Miranda rights and ended the interrogation. The fact that Thompkins

made a statement about three hours after receiving a Miranda warning does

not overcome the fact that he engaged in a course of conduct indicating

waiver. Police are not required to re-warn suspects from time to time.

Thompkins' answer to Helgert's question about praying to God for

forgiveness for shooting the victim was sufficient to show a course of

conduct indicating waiver.

{¶32} In State v. Roberts,

,

(1987), the Ohio

Supreme Court applied a totality of the circumstances test and found that the warnings

given earlier had gone stale at the time the defendant made incriminating statements:

The totality of the circumstances test is explained by the Supreme

Court of North Carolina in State v. McZorn (1975),

,

. The following criteria are set forth: Stark County, Case No. 2018CA00107 14

“ * * * (1)[T]he length of time between the giving of the first warnings

and subsequent interrogation, * * * (2) whether the warnings and the

subsequent interrogation were given in the same or different places, * * *

(3) whether the warnings were given and the subsequent interrogation

conducted by the same or different officers, * * * (4) the extent to which the

subsequent statement differed from any previous statements; * * * [and] (5)

the apparent intellectual and emotional state of the suspect. * * *” (Citations

omitted.)

,

. See, also, State v. Myers (Me. 1975),

; State v. Artis (1981),

,

.

{¶33} We have found that Brown did not clearly and unequivocally request an

attorney. Therefore, the police were not required to refrain from continuing the

interrogation after the three-minute break unless Brown initiated the request. In any

event, Brown’s conduct and his statements would clearly lead a reasonable police officer

to believe that Brown was indicting his willingness to resume the interrogation once he

had a moment to reflect upon the events that had transpired. Brown could have said

nothing when the detectives returned, or he could have unambiguously invoked his

Miranda rights and ended the interrogation. The trial court did not err in overruling

Brown’s motion to suppress on that basis.

C. Whether Brown voluntarily waived his Miranda rights.

{¶34} The question of an effective waiver of a Federal Constitutional right in a

State criminal proceeding is governed by Federal standards. Boykin v. Alabama, 395,

U.S. 238(1969). (Citing Douglas v. Alabama,

,

,

(1965). For a waiver to be valid under the Due Process clause of the United States Stark County, Case No. 2018CA00107 15

Constitution, it must be: “[a]n intentional relinquishment or abandonment of a known right

or privilege.” Boykin, supra, 395 U.S. at 243 n. 5 (Quoting Johnson v. Zerbst (1938),

,

,

).

{¶35} Coercive police activity is a necessary predicate to the finding that a

confession is not "voluntary" within the meaning of the Due Process Clause of the

Fourteenth Amendment. See Moran v. Burbine, 475 U.S., at 421, 106 S.Ct., at 1141

("[T]he relinquishment of the right must have been voluntary in the sense that it was the

product of a free and deliberate choice rather than intimidation, coercion or deception....

[T]he record is devoid of any suggestion that police resorted to physical or psychological

pressure to elicit the statements"); Fare v. Michael C.,

,

,

(1979) (The defendant was "not worn down by improper

interrogation tactics or lengthy questioning or by trickery or deceit.... The officers did not

intimidate or threaten respondent in any way. Their questioning was restrained and free

from the abuses that so concerned the Court in Miranda"). Colorado v. Connelly,

,

,

(1986).

{¶36} In Colorado v. Connelly, the United States Supreme Court held that "police

over-reaching" is a prerequisite to a finding of involuntariness. Evidence of use by the

interrogators of an inherently coercive tactic (e.g., physical abuse, threats, deprivation of

food, medical treatment, or sleep) will trigger the totality of the circumstances analysis.

State v. Clark,

,

. (1988). In State v. Belton,

the Ohio Supreme Court further defined “coercion,”

This court may find coercion when law-enforcement officers

“persuad[e] or deceiv[e] the accused, with false promises or information, Stark County, Case No. 2018CA00107 16

into relinquishing his rights and responding to questions.” Edwards, 49 Ohio

St.2d at 39,

. However, “the presence of promises does

not as a matter of law, render a confession involuntary.” Id. at 41,

. Officers may discuss the advantages of telling the truth,

advise suspects that cooperation will be considered, or even suggest that a

court may be lenient with a truthful defendant.

And “[a]dmonitions to tell

the truth are considered to be neither threats nor promises.” State v. Loza,

,

(1994); see also State v. Dixon,

,

,

, ¶ 29. Finally, it is not

unduly coercive for a law-enforcement officer to mention potential

punishments. See State v. Western,

,

, ¶ 38

(2d Dist.); compare State v. Robinson, 9th Dist. Summit No. 16766,

, *4 (“While a correct statement of the law may not render a

confession involuntary, a misstatement of the law may cause such a

confession to be involuntary”).

,

,

.

{¶37} In the cause sub judice, Brown does not assert that he was physically

deprived or mistreated while at the police department, nor does the record reveal any

type of physical deprivation. Moreover, there is no evidence that police subjected Brown

to threats or physical abuse, or deprived him of food, sleep, or medical treatment. See

State v. Cooey,

,

(1989).

{¶38} In Ohio, in order to determine whether an individual has waived his or her

rights to remain silent and have the assistance of counsel, we must examine the totality Stark County, Case No. 2018CA00107 17

of the circumstances surrounding the waiver. State v. Clark,

,

(1988). This approach requires us to inquire into all the circumstances

surrounding the interrogation. This includes the age, mentality and prior criminal

experience of the accused; the length, intensity and frequency of interrogation; the

existence of physical deprivation or mistreatment; and the existence of threat or

inducement. State v. Edwards,

,

(1976), paragraph two

of the syllabus, reversed on other grounds,

,

,

(1978).

{¶39} Evidence of a written waiver form signed by the accused is strong proof that

the waiver was valid. State v. Clark,

,

(1988);

see North Carolina v. Butler,

,

,

(1979); State v. Dennis,

,

,

(1997). Further, Brown acknowledged at the beginning of the tape-

recorded interview with Detective George that he had previously read his rights and that

he understood them.

{¶40} As an initial matter, other than the fact that Brown was in police custody,

nothing about the circumstances of his interrogation was inherently coercive. Brown is

40 years old and has extensive experience with the criminal justice system. Brown

represented himself during his jury trial. Brown was offered water and given a break when

he requested one. Brown was read his Miranda rights, acknowledged that he understood

them and signed a written waiver of those rights.

{¶41} Brown contends that in spite of his valid waiver, he was coerced to confess

because of statements that Detective George made during the interview. Specifically, Stark County, Case No. 2018CA00107 18

Brown argues that immediately after he claims he requested an attorney, Sergeant

George states, "Listen, you want to know what you're going to be charged with? If you

decide that you're going to stop right now and not talk to us, you're going to be charged

with murder, right?” S.H. at 57. [Appellant’s Brief at 10]. Brown submits, “Despite Mr.

Brown's age or previous experience with the justice system, threatening to charge

someone with murder, and indicating that he could avoid the charge by waiving his right

to remain silent impairs his capacity for self-determination. Mr. Brown's will was

overborne and his waiver of his Miranda rights was not voluntary.”

{¶42} Admonitions to tell the truth are not coercive in nature. State v. Jones, 2nd

Dist. Montgomery No. 26289, 2015–Ohio–4116, 43,

N.E.3d 833, ¶ 19,

citing State v. Porter,

, 2008–Ohio–4627,

(2d

Dist.); State v. Loza,

,

(1994) ( “Admonitions to tell

the truth are considered to be neither threats nor promises and are permissible.”); State

v. Bradley, 3rd Dist. Logan No. 8–95–15,

(Dec. 5, 1996) (“Repeated

requests to tell the truth do not constitute coercion so as to invalidate a confession.”),

citing State v. Wiles,

,

(1991); State v. Western, 2nd

Dist. Montgomery No. 26058, 2015–Ohio–627,

, ¶ 42 (“[a] police officer's

assertion to the suspect that he or she is lying or that the suspect would not have another

chance to tell his or her side of the story does not automatically render a confession

involuntary”). Likewise, a police officer's statement to a suspect that a confession “will be

helpful” or a police officer's offer to “help” the suspect if he confesses is “not improper”

and does not “invalidate an otherwise legal confession.” Jones, 2015–Ohio–4116, ¶ 19,

citing State v. Stringham, 2nd Dist. Miami No. 2002-CA-9, 2003–Ohio–1100,¶ 16 (officer's Stark County, Case No. 2018CA00107 19

attempt to “downplay the seriousness of the offense, by explaining that the situation might

not be as bad as [defendant] thought” and statements that “the situation was not going

away” and that defendant should tell the truth and “ ‘help’ himself out of a bad situation”

did not cause defendant's free will to be overborne or otherwise result in a coerced

confession); State v. Simms, 10th Dist. Franklin No. 10AP–1063, 2012–Ohio–2321, ¶ 59

(where detectives “encourage[d] honesty, stating it could help [defendant],” detectives'

actions “did not rise to the level of coercion”); see also State v. Fouts, 4th Dist.

Washington No. 15CA25, 2016–Ohio–1104, ¶ 38–41 (concluding that there was nothing

“improper” in officer's attempt to “create a favorable environment for a confession” by

minimizing the offense as a “mistake” and the defendant's behavior as “iffy”; nothing in

the officer's interview “approache[d] the level of conduct necessary to overcome

[defendant's] will to remain silent” or “otherwise resulted in a coerced confession” where

there was no “badgering” or threats by the officer, the “tone of the questioning was casual,

conversational, and cooperative” and there was “no hint of coercion or duress during the

interview”); State v. Russell, 2nd Dist. Clark No.2011–CA–10, 2012–Ohio–4316, ¶ 23

(detective's interrogation techniques and statements to defendant that he needed to “man

up” and “take some lumps,” i.e., tell the truth and take responsibility for his actions, were

not inherently coercive tactics).

{¶43} This record in the case at bar, including the video of Brown’s interaction with

the detectives does not support any allegation of police coercion, show of authority or

intimidation. Under the circumstances of the case at bar, we find the evidence supports

the conclusion that Brown knowingly, intelligently and voluntary waived his Miranda rights Stark County, Case No. 2018CA00107 20

and his statements to the police were voluntarily given. Accordingly, the trial court did not

err in overruling Brown’s motion to suppress on that basis.

{¶44} Brown’s First Assignment of Error is overruled.

II.

{¶45} In his Second Assignment of Error, Brown maintains there was insufficient

evidence to convict him. Brown further argues that the jury’s findings are against the manifest

weight of the evidence.

STANDARD OF APPELLATE REVIEW.

Sufficiency of the Evidence.

{¶46} The Sixth Amendment provides: “In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial, by an impartial jury....” This right, in

conjunction with the Due Process Clause, requires that each of the material elements of

a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States,

,

,

(2013); Hurst v. Florida,

,

(2016). The test for the sufficiency of the evidence involves a

question of law for resolution by the appellate court. State v. Walker,

,

,

, ¶30. “This naturally entails a review of the elements

of the charged offense and a review of the state's evidence.” State v. Richardson,

,

,

, ¶13.

{¶47} When reviewing the sufficiency of the evidence, an appellate court does not

ask whether the evidence should be believed. State v. Jenks,

,

(1991), paragraph two of the syllabus: Walker, at ¶30. “The relevant inquiry

is whether, after viewing the evidence in the light most favorable to the prosecution, any Stark County, Case No. 2018CA00107 21

rational trier of fact could have found the essential elements of the crime proven beyond

a reasonable doubt.” Jenks at paragraph two of the syllabus. State v. Poutney,

,

,

. Thus, “on review for evidentiary sufficiency

we do not second-guess the jury's credibility determinations; rather, we ask whether, ‘if

believed, [the evidence] would convince the average mind of the defendant's guilt beyond

a reasonable doubt.’” State v. Murphy,

,

(2001),

quoting Jenks at paragraph two of the syllabus (emphasis added); Walker at ¶31. We

will not “disturb a verdict on appeal on sufficiency grounds unless ‘reasonable minds could

not reach the conclusion reached by the trier-of-fact.’” State v. Ketterer,

,

,

, ¶ 94, quoting State v. Dennis,

,

(1997); State v. Montgomery,

, 2016-Ohio-

5487,

.

ISSUE FOR APPEAL

A. Whether, after viewing the evidence in the light most favorable to the

prosecution, the evidence, “if believed, would convince the average mind of the

defendant's guilt on each element of the crimes beyond a reasonable doubt.”

{¶48} Brown admits that he stabbed Y.W. resulting in Y.W.’s death. Brown argues that

the jury lost its way in not finding that he had acted in self-defense. [Appellant’s Brief at 11-13].

1. Self-defense - deadly force.

{¶49} Self-defense is a “confession and avoidance” affirmative defense in which

appellant admits the elements of the crime but seeks to prove some additional element

that absolves him of guilt. State v. White, 4th Dist. Ross No. 97 CA 2282,

(Jan. 14, 1998). The affirmative defense of self-defense places the burden of proof on a Stark County, Case No. 2018CA00107 22

defendant by a preponderance of the evidence. In re Collier, 5th Dist. Richland No. 01

CA 5,

(Aug. 30, 2001), citing State v. Caldwell,

,

(4th Dist. 1992).

{¶50} The elements of self-defense differ depending on whether the defendant

used deadly or non-deadly force to defend himself. “Deadly force” means any force that

carries a substantial risk that it will proximately result in the death of any person. R.C.

2901.01(A)(2).

Courts have concluded that using even “a small knife on another

person’s body” constitutes “deadly force.” [State v. Densmore, 3d Dist.

Henry No. 7–08–04, 2009–Ohio–6870, ¶ 25], citing Struthers v. Williams,

7th Dist. Mahoning No. 07 MA 55, 2008–Ohio–6637, ¶ 13, State v. Skinner,

9th Dist. Lorain No. 06CA009023, 2007–Ohio–5601, ¶ 19, State v. Sims,

8th Dist. Cuyahoga No. 85608, 2005–Ohio–5846, ¶ 17, and State v.

Hansen, 4th Dist. Athens No. 01CA15, 2002–Ohio–6135, ¶ 29. See also

State v. Harding, 2d Dist. Montgomery No. 24062, 2011–Ohio–2823, ¶ 15

(“Stabbing a victim (or victims) with a knife constitutes the use of deadly

force. * * * Consequently, to satisfy his burden, Harding had to meet the

standard for self-defense through the use of deadly force.”), citing Sims at

¶ 17, Densmore at ¶ 28, and Hansen ¶ 29.

State v. Bagley, 3rd Dist. Allen No. 1–13–31, 2014–Ohio–1787, ¶ 15. Accord, State v.

Melendez, 8th Dist. Cuyahoga No. 97175, 2012–Ohio–2385, ¶ 27; State v. Harding, 2nd

Dist. Montgomery No. 24062, 2011–Ohio–2823, ¶ 15; State v. Keil, 5th Dist. Richland No.

16CA28,

, ¶ 37. Stark County, Case No. 2018CA00107 23

{¶51} In the case at bar, Brown used a filet knife with a 6-inch blade to stab Y.W.

1T. at 238. Consequently, to satisfy his burden of proof Brown had to meet the standard

for self-defense using deadly force.

{¶52} To establish self-defense through the use of deadly force, “a defendant

must prove the following elements: (1) that the defendant was not at fault in creating the

situation giving rise to the affray; (2) that the defendant had a bona fide belief that he was

in imminent danger of death or great bodily harm and that his only means of escape from

such danger was in the use of such force; and (3) that the defendant did not violate any

duty to retreat or avoid the danger.” State v. Barnes,

, 24, 2002–Ohio–

68,

, citing State v. Robbins,

,

(1979).

“[T]he elements of self-defense are cumulative. * * * If the defendant fails to prove any

one of these elements by a preponderance of the evidence he has failed to demonstrate

that he acted in self-defense.” State v. Jackson,

,

(1986).

{¶53} As to the first self-defense element, i.e., whether Brown was at fault in

creating the violent situation, Brown testified that he went to Y.W.’s home because he

was concerned for his cousin, M.L. He contends that Y.W. did not have to come out from

inside the house to confront him. Brown argues that M.L. testified that she never saw a

knife. Brown contends that if he were holding a knife, it would be unlikely that Y.W. would

have charged at him from the house. [Appellant’ brief at 12].

{¶54} Regarding the second self-defense element, i.e., whether Brown had a

bona fide belief that he was in imminent danger of death or great bodily harm, and the

third element, i.e., the duty to retreat, we again note Brown’s version of the altercation is Stark County, Case No. 2018CA00107 24

that Y.W. “sucker punched” him. He notes that Y.W. was four inches taller than Brown,

as well as weighing over 200 pounds. Brown testified that Y.W. strangled him, preventing

him from seeing clearly and breathing. [Appellant’s brief at 12-13]. Brown contends that

Y.W.’s threat to kill him coupled with Y.W.’s unprovoked violence gave rise to his bona

fide belief that he was in imminent danger of death and his only means to escape was

utilizing his knife.

{¶55} Brown’s present argument is contingent on his assertion that he was the

only credible witness at trial whose testimony matches the physical evidence supporting

the claim of self-defense. However, we find the record supports the jury’s decision.

{¶56} Rather than staying in the safety of his home after the altercation at the

drive-thru, Brown walked to his house, and then left with a knife in his pocket and headed

to confront Y.W. at Y.W.'s home. M. L. testified that Brown had been told to stay away

from their home "because his drinking leads to violence.” 1T at 187. M.L. testified that

she never heard a knock on the door that day but, heard Brown outside hollering and

screaming- "mother fucker.”

{¶57} M.L. testified that Brown came up the steps with his hands in his pockets.

Y.W. took a swing at Brown that missed. She then saw Y.W. fall to the ground. M.L.

testified that when Y.W. walked back up the steps, he was bleeding like a faucet and said,

"He stabbed me Bae" and fell. 1T. at 197. Then she heard Brown say "Yeah, Nigga" and

then Brown calmly walked away.

{¶58} On his way home, Brown hid the knife in the bushes by his neighbor's

house. Officers responding to Brown's 9-1-1 call, saw Brown, and observed that he fit

the physical description of Y.W.'s assailant. The officers tried to talk with Brown, but Stark County, Case No. 2018CA00107 25

Brown put his head down and ran. The officers eventually cornered Brown and took him

into custody. The arresting officers took photos of Brown's neck and abdomen and did

not observe any physical injuries to his neck. The photographs were entered into

evidence during trial. Brown did not tell the investigating officers that he had been

strangled during his confrontation with Y.W.

{¶59} We hold that Brown concedes that the state met its burden of production

regarding each element of the crimes of murder and felonious assault and, accordingly,

there was sufficient evidence to submit the charge to the jury and to support Brown’s

conviction.

{¶60} Viewing the evidence in the case at bar in a light most favorable to the

prosecution, we conclude that a reasonable person could have found beyond a

reasonable doubt that Brown was not justified in the use of deadly force to defend himself

from Y.W.

Manifest weight of the evidence.

{¶61} As to the weight of the evidence, the issue is whether the jury created a

manifest miscarriage of justice in resolving conflicting evidence, even though the

evidence of guilt was legally sufficient. State v. Thompkins,

, 386–387,

(1997), superseded by constitutional amendment on other grounds as

stated by State v. Smith,

,

, 1997–Ohio–355; State v.

Issa,

,

(2001).

“[I]n determining whether the judgment below is manifestly against

the weight of the evidence, every reasonable intendment and every Stark County, Case No. 2018CA00107 26

reasonable presumption must be made in favor of the judgment and the

finding of facts.

***

“If the evidence is susceptible of more than one construction, the

reviewing court is bound to give it that interpretation which is consistent with

the verdict and judgment, most favorable to sustaining the verdict and

judgment.”

Seasons Coal Co., Inc. v. Cleveland,

,

(1984), fn.

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).

{¶62} The reviewing court must bear in mind, however, that credibility generally is

an issue for the trier of fact to resolve. State v. Issa,

,

(2001); State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008–Ohio–1744, ¶ 31.

Because the trier of fact sees and hears the witnesses and is particularly competent to

decide whether, and to what extent, to credit the testimony of particular witnesses, the

appellate court must afford substantial deference to its determinations of credibility.

Barberton v. Jenney,

, 2010–Ohio–2420,

. In

other words, “[w]hen there exist two fairly reasonable views of the evidence or two

conflicting versions of events, neither of which is unbelievable, it is not our province to

choose which one we believe.” State v. Dyke, 7th Dist. Mahoning No. 99 CA 149, 2002–

Ohio–1152, at ¶ 13, citing State v. Gore,

,

(7th

Dist. 1999). Thus, an appellate court will leave the issues of weight and credibility of the

evidence to the fact finder, as long as a rational basis exists in the record for its decision.

State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012–Ohio–1282, ¶ 24. Stark County, Case No. 2018CA00107 27

{¶63} Once the reviewing court finishes its examination, an appellate court may

not merely substitute its view for that of the jury, but must find that “ ‘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.’” State v. Thompkins, supra,

,

quoting State v. Martin,

,

, 720–721(1st Dist.

1983). Accordingly, reversal on manifest weight grounds is reserved for “the exceptional

case in which the evidence weighs heavily against the conviction.”

ISSUE FOR APPEAL.

B. Whether the jury court clearly lost their way and created such a manifest

miscarriage of justice that the convictions must be reversed and a new trial

ordered.

{¶64} The jury as the trier of fact was free to accept or reject any and all of the

evidence offered by the parties and assess the witness’s credibility. “While the trier of

fact 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, 10th Dist. Franklin No. 99AP–739,

(Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09–1236,

(May 28, 1996). Indeed, the trier of fact need not believe all of a witness’

testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin

No. 02AP–604, 2003–Ohio–958, ¶ 21, citing State v. Antill,

, 67,

(1964); State v. Burke, 10th Dist. Franklin No. 02AP–1238, 2003–Ohio–2889,

citing State v. Caldwell,

,

(4th Dist. 1992). Although

the evidence may have been circumstantial, we note that circumstantial evidence has the Stark County, Case No. 2018CA00107 28

same probative value as direct evidence. State v. Jenks,

,

(1991), paragraph one of the syllabus, superseded by State constitutional

amendment on other grounds as stated in State v. Smith,

, 102 at n.4,

(1997).

{¶65} In the case at bar, the jury heard the witnesses, viewed the evidence and

heard Brown’s statement to the police as well as Brown’s arguments and explanations

about his actions. Thus, a rational basis exists in the record for the jury’s decision.

{¶66} We find that this is not an “‘exceptional case in which the evidence weighs

heavily against the conviction.’” State v. Thompkins,

, 386–387,

(1997), quoting Martin,

,

. Based upon

the foregoing and the entire record in this matter we find Brown’s convictions are not

against the sufficiency or the manifest weight of the evidence. To the contrary, the jury

appears to have fairly and impartially decided the matters before them. The jury heard

the witnesses, evaluated the evidence, and was convinced of Brown’s guilt.

{¶67} The jury neither lost their way nor created a miscarriage of justice in

rejecting Brown’s theory of self-defense after hearing the evidence. The jury did not

clearly lose its way and create a manifest miscarriage of justice requiring that Brown’s

conviction for the murder of Y.W. be reversed and a new trial ordered.

{¶68} Brown’s Second Assignments of Error is overruled. Stark County, Case No. 2018CA00107 29

{¶69} The judgment of the Stark County Court of Common Pleas is affirmed.

By Gwin, P.J.,

Hoffman, J., and

Delaney, J., concur