[Cite as State v. Brewer, 2013-Ohio-309.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT MEIGS COUNTY
STATE OF OHIO, : : Plaintiff-Appellee, : Case No: 11CA6 : v. : : DECISION AND TERRI BREWER, : JUDGMENT ENTRY : Defendant-Appellant. : Filed: January 30, 2013
APPEARANCES:
Timothy Young, Ohio State Public Defender, and Glenn T. Jones, Ohio State Assistant Public Defender, Athens, Ohio, for Appellant.
Colleen Williams, Meigs County Prosecuting Attorney, Pomeroy, Ohio, for Appellee.
Kline, J.:
{¶1} Terri L. Brewer (hereinafter “Brewer”) appeals the judgment of the Meigs
County Municipal Court, which convicted her of violating a protection order. Brewer’s
appellate counsel has advised this court that, after reviewing the record, he cannot find
a meritorious claim for appeal. As a result, Brewer’s appellate counsel has moved to
withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
(1967). After independently reviewing the record, we agree that Brewer’s appeal is
wholly frivolous. Accordingly, we (1) grant counsel’s request to withdraw and (2) affirm
the judgment of the trial court.
I. Meigs App. No. 11CA6 2
{¶2} On November 12, 2009, a protection order was issued against Brewer.
Under the protection order, Brewer could not enter the home of Bonnie Lee Coppic
(hereinafter “Coppic”). (Coppic is Brewer’s mother.) Nevertheless, on December 25,
2009, Brewer celebrated Christmas in Coppic’s home.
{¶3} Eventually, Brewer was charged with several crimes, including violating
the November 12, 2009 protection order. Brewer pled not guilty to the charges, and her
case proceeded to a bench trial. (Because Brewer was found guilty of just one count --
violating a protection order -- we need not discuss the other charges against her.)
{¶4} At trial, the state introduced photographs that show Brewer and her
children celebrating Christmas in Coppic’s home. And based on Coppic’s testimony,
the photographs were most likely taken on December 25, 2009.
{¶5} At the close of the state’s evidence, Brewer moved for an acquittal under
Crim.R. 29. The trial court denied Brewer’s motion as to the relevant count and,
eventually, convicted her of violating a protection order.
II.
{¶6} Although Brewer has appealed her conviction, Brewer’s appellate counsel
has filed both a motion to withdraw and an Anders brief.
In Anders, the United States Supreme Court held that if
counsel determines after a conscientious examination of the
record that the case is wholly frivolous, counsel should so
advise the court and request permission to withdraw.
[Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493].
Counsel must accompany the request with a brief identifying Meigs App. No. 11CA6 3
anything in the record that could arguably support the
appeal. Id. Counsel also must furnish the client with a copy
of the brief and request to withdraw and allow the client
sufficient time to raise any matters that the client chooses.
Id. Once these requirements have been satisfied, the
appellate court must then fully examine the proceedings
below to determine if meritorious issues exist. Id. If the
appellate court determines that the appeal is frivolous, it may
grant counsel’s request to withdraw and dismiss the appeal
without violating constitutional requirements or may proceed
to a decision on the merits if state law so requires. Id.
Alternatively, if the appellate court concludes that any of the
legal points are arguable on their merits, it must afford the
appellant the assistance of counsel to argue the appeal. Id.
State v. Wise, 4th Dist. No. 08CA40, 2009-Ohio-5264, ¶ 11. See also State v. Taylor,
2d Dist. No. 23833, 2010-Ohio-4276, ¶ 2 (stating that an appellant must be afforded
“time to file a pro se brief”).
{¶7} Upon receiving an Anders brief, we must “conduct ‘a full examination of all
the proceeding[s] to decide whether the case is wholly frivolous.’” Penson v. Ohio, 488
U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), quoting Anders at 744. If we find
only frivolous issues on appeal, we may then proceed to address the case on its merits
without affording appellant the assistance of counsel. Penson at 80. However, if we
conclude that there are nonfrivolous issues for appeal, we must afford appellant the Meigs App. No. 11CA6 4
assistance of counsel to address those issues. Anders at 744; Penson at 80; accord
State v. Keller, 4th Dist. No. 10CA39, 2012-Ohio-237, ¶ 5.
{¶8} Here, Brewer’s counsel has satisfied the requirements of Anders. And
although Brewer has not filed a pro se brief, Brewer’s counsel has raised the following
potential assignment of error: “A trial court errs to the substantial prejudice of appellant
and in violation of her rights to due process of law under the United States and Ohio
Constitutions by denying appellant[’s Crim.R. 29] motion as to the charge of violating a
protection order.”
III.
{¶9} Brewer’s counsel asserts that the trial court possibly erred when it denied
Brewer’s Crim.R. 29 motion. We disagree. Here, the state introduced sufficient
evidence that Brewer entered Coppic’s house in violation of the November 12, 2009
protection order.
{¶10} “We review the trial court’s denial of a defendant’s Crim.R. 29 motion for
acquittal for sufficiency of the evidence.” State v. Turner, 4th Dist. No. 08CA3234,
2009-Ohio-3114, ¶ 17, citing State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184
(1978), syllabus. When reviewing a case to determine if the record contains sufficient
evidence to support a criminal conviction, we must
“examine the evidence admitted at trial to determine whether
such evidence, if believed, would convince the average mind
of the defendant’s guilt beyond a reasonable doubt. The
relevant inquiry is whether, after viewing the evidence in a
light most favorable to the prosecution, any rational trier of Meigs App. No. 11CA6 5
fact could have found the essential elements of the crime
proven beyond a reasonable doubt.” State v. Smith, 4th
Dist. No. 06CA7, 2007-Ohio-502, ¶ 33, quoting State v.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus.
See also Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
{¶11} The sufficiency-of-the-evidence test “raises a question of law and does not
allow us to weigh the evidence.” Smith at ¶ 34, citing State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1st Dist.1983). Instead, the sufficiency-of-the-evidence test
“‘gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to
ultimate facts.’” Smith at ¶ 34, quoting Jackson at 319. This court will “reserve the
issues of the weight given to the evidence and the credibility of witnesses for the trier of
fact.” Smith at ¶ 34, citing State v.
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[Cite as State v. Brewer, 2013-Ohio-309.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT MEIGS COUNTY
STATE OF OHIO, : : Plaintiff-Appellee, : Case No: 11CA6 : v. : : DECISION AND TERRI BREWER, : JUDGMENT ENTRY : Defendant-Appellant. : Filed: January 30, 2013
APPEARANCES:
Timothy Young, Ohio State Public Defender, and Glenn T. Jones, Ohio State Assistant Public Defender, Athens, Ohio, for Appellant.
Colleen Williams, Meigs County Prosecuting Attorney, Pomeroy, Ohio, for Appellee.
Kline, J.:
{¶1} Terri L. Brewer (hereinafter “Brewer”) appeals the judgment of the Meigs
County Municipal Court, which convicted her of violating a protection order. Brewer’s
appellate counsel has advised this court that, after reviewing the record, he cannot find
a meritorious claim for appeal. As a result, Brewer’s appellate counsel has moved to
withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
(1967). After independently reviewing the record, we agree that Brewer’s appeal is
wholly frivolous. Accordingly, we (1) grant counsel’s request to withdraw and (2) affirm
the judgment of the trial court.
I. Meigs App. No. 11CA6 2
{¶2} On November 12, 2009, a protection order was issued against Brewer.
Under the protection order, Brewer could not enter the home of Bonnie Lee Coppic
(hereinafter “Coppic”). (Coppic is Brewer’s mother.) Nevertheless, on December 25,
2009, Brewer celebrated Christmas in Coppic’s home.
{¶3} Eventually, Brewer was charged with several crimes, including violating
the November 12, 2009 protection order. Brewer pled not guilty to the charges, and her
case proceeded to a bench trial. (Because Brewer was found guilty of just one count --
violating a protection order -- we need not discuss the other charges against her.)
{¶4} At trial, the state introduced photographs that show Brewer and her
children celebrating Christmas in Coppic’s home. And based on Coppic’s testimony,
the photographs were most likely taken on December 25, 2009.
{¶5} At the close of the state’s evidence, Brewer moved for an acquittal under
Crim.R. 29. The trial court denied Brewer’s motion as to the relevant count and,
eventually, convicted her of violating a protection order.
II.
{¶6} Although Brewer has appealed her conviction, Brewer’s appellate counsel
has filed both a motion to withdraw and an Anders brief.
In Anders, the United States Supreme Court held that if
counsel determines after a conscientious examination of the
record that the case is wholly frivolous, counsel should so
advise the court and request permission to withdraw.
[Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493].
Counsel must accompany the request with a brief identifying Meigs App. No. 11CA6 3
anything in the record that could arguably support the
appeal. Id. Counsel also must furnish the client with a copy
of the brief and request to withdraw and allow the client
sufficient time to raise any matters that the client chooses.
Id. Once these requirements have been satisfied, the
appellate court must then fully examine the proceedings
below to determine if meritorious issues exist. Id. If the
appellate court determines that the appeal is frivolous, it may
grant counsel’s request to withdraw and dismiss the appeal
without violating constitutional requirements or may proceed
to a decision on the merits if state law so requires. Id.
Alternatively, if the appellate court concludes that any of the
legal points are arguable on their merits, it must afford the
appellant the assistance of counsel to argue the appeal. Id.
State v. Wise, 4th Dist. No. 08CA40, 2009-Ohio-5264, ¶ 11. See also State v. Taylor,
2d Dist. No. 23833, 2010-Ohio-4276, ¶ 2 (stating that an appellant must be afforded
“time to file a pro se brief”).
{¶7} Upon receiving an Anders brief, we must “conduct ‘a full examination of all
the proceeding[s] to decide whether the case is wholly frivolous.’” Penson v. Ohio, 488
U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), quoting Anders at 744. If we find
only frivolous issues on appeal, we may then proceed to address the case on its merits
without affording appellant the assistance of counsel. Penson at 80. However, if we
conclude that there are nonfrivolous issues for appeal, we must afford appellant the Meigs App. No. 11CA6 4
assistance of counsel to address those issues. Anders at 744; Penson at 80; accord
State v. Keller, 4th Dist. No. 10CA39, 2012-Ohio-237, ¶ 5.
{¶8} Here, Brewer’s counsel has satisfied the requirements of Anders. And
although Brewer has not filed a pro se brief, Brewer’s counsel has raised the following
potential assignment of error: “A trial court errs to the substantial prejudice of appellant
and in violation of her rights to due process of law under the United States and Ohio
Constitutions by denying appellant[’s Crim.R. 29] motion as to the charge of violating a
protection order.”
III.
{¶9} Brewer’s counsel asserts that the trial court possibly erred when it denied
Brewer’s Crim.R. 29 motion. We disagree. Here, the state introduced sufficient
evidence that Brewer entered Coppic’s house in violation of the November 12, 2009
protection order.
{¶10} “We review the trial court’s denial of a defendant’s Crim.R. 29 motion for
acquittal for sufficiency of the evidence.” State v. Turner, 4th Dist. No. 08CA3234,
2009-Ohio-3114, ¶ 17, citing State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184
(1978), syllabus. When reviewing a case to determine if the record contains sufficient
evidence to support a criminal conviction, we must
“examine the evidence admitted at trial to determine whether
such evidence, if believed, would convince the average mind
of the defendant’s guilt beyond a reasonable doubt. The
relevant inquiry is whether, after viewing the evidence in a
light most favorable to the prosecution, any rational trier of Meigs App. No. 11CA6 5
fact could have found the essential elements of the crime
proven beyond a reasonable doubt.” State v. Smith, 4th
Dist. No. 06CA7, 2007-Ohio-502, ¶ 33, quoting State v.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus.
See also Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
{¶11} The sufficiency-of-the-evidence test “raises a question of law and does not
allow us to weigh the evidence.” Smith at ¶ 34, citing State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1st Dist.1983). Instead, the sufficiency-of-the-evidence test
“‘gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to
ultimate facts.’” Smith at ¶ 34, quoting Jackson at 319. This court will “reserve the
issues of the weight given to the evidence and the credibility of witnesses for the trier of
fact.” Smith at ¶ 34, citing State v. Thomas, 70 Ohio St.2d 79, 79-80, 434 N.E.2d 1356
(1982); State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of
the syllabus.
{¶12} Under R.C. 2919.27(A)(1), “No person shall recklessly violate the terms of
* * * [a] protection order issued or consent agreement approved pursuant to section
2919.26 or 3113.31 of the Revised Code * * *.” And on November 12, 2009, “a
Protective Order was issued * * *, naming [Coppic], for [Brewer] not to have any contact,
be around [Coppic], not enter [Coppic’s] residence, school, place of employment, not
interfere with [Coppic’s] rights, [and] stay away from [Coppic] at least five hundred (500)
yards * * *.” Transcript at 34-35. Meigs App. No. 11CA6 6
{¶13} The state alleged that Brewer violated the November 12, 2009 protection
order by entering Coppic’s residence. The state introduced photographs in support of
this allegation, and Coppic testified about the photographs’ significance.
Q: * * * [D]o [these photographs] portray your house?
A: Yes.
Q: And ma’am, what date do those uh, what date were those
taken on?
A: I am assuming December twenty-fifth because uh
[Brewer’s husband] and [Brewer] were working on
reconciling.
Q: Sure. And their children are in that picture?
Q: And those are the children receiving presents that they
received on [December 25, 2009]?
Q: And that’s at your house, is that correct?
A: Yes. Transcript at 9-10.
{¶14} Based on these photographs, any rational trier of fact could have
reasonably inferred that Brewer was in Coppic’s residence on December 25, 2009. The
photographs depict Brewer celebrating Christmas inside Coppic’s house. Furthermore,
the photographs show Brewer’s children opening presents that, according to Coppic,
the children received on December 25, 2009. Therefore, the state introduced sufficient
evidence that Brewer had entered Coppic’s house in violation of the November 12, 2009 Meigs App. No. 11CA6 7
protection order. (Brewer moved for acquittal at the close of the state’s evidence.
Therefore, Brewer’s own testimony is irrelevant as to whether the trial court erred in
denying her Crim.R. 29 motion. Nevertheless, Brewer testified that she was indeed at
Coppic’s house on December 25, 2009.)
{¶15} After viewing the evidence in a light most favorable to the state, we find
that any rational trier of fact could have found all the essential elements of violating a
protection order proven beyond a reasonable doubt. Therefore, the trial court did not
err in denying Brewer’s Crim.R. 29 motion.
{¶16} In conclusion, we find no merit in Brewer’s potential assignment of error.
Furthermore, after fully examining the proceedings below, we have found no other
potential issues for appeal. Because we agree that Brewer’s appeal is wholly frivolous,
we (1) grant Brewer’s counsel’s motion to withdraw and (2) affirm the judgment of the
trial court.
JUDGMENT AFFIRMED. Meigs App. No. 11CA6 8
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the 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 Meigs County Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
McFarland, P.J. & Abele, J.: Concur in Judgment & Opinion.
For the Court
BY: ____________________________ Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.