State v. Brewer

2016 Ohio 5366

Opinion

[Cite as State v. Brewer, 2016-Ohio-5366.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

STATE OF OHIO C.A. No. 14CA010608

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE PAUL B. BREWER COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellant CASE No. 13CR087463

DECISION AND JOURNAL ENTRY

Dated: August 15, 2016

CARR, Judge.

{¶1} Appellant, Paul Brewer, appeals the judgment of the Lorain County Court of

Common Pleas. This Court affirms.

I.

{¶2} On June 19, 2013, the Lorain County Grand Jury indicted Brewer on one count of

failure to register a change of address in violation of R.C. 2950.05(F)(1). Though Brewer

pleaded not guilty to the charge at arraignment, he subsequently filed a competency motion and

entered a plea of not guilty by reason of insanity. Brewer also signed a waiver of his speedy trial

rights. After several months of pretrial proceedings, Brewer withdrew his NGRI plea and

reinstated his plea of not guilty. Brewer also withdrew his speedy trial waiver. The matter

proceeded to a jury trial. Before the commencement of trial, Brewer moved to dismiss the

indictment on the basis that his speedy trial rights had been violated. The trial court denied this 2

motion. Brewer was subsequently convicted of the sole count in the indictment and the trial

court imposed a two-year prison sentence.

{¶3} On appeal, Brewer raises three assignments of error.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED BY OVERRULING APPELLANT’S MOTION TO DISMISS BASED ON A VIOLATION OF HIS SPEEDY TRIAL RIGHTS.

{¶4} In his first assignment of error, Brewer contends that the trial court erred by

denying his motion to dismiss on speedy trial grounds. This Court disagrees.

{¶5} When reviewing an appellant’s claim that he was denied his right to a speedy

trial, an appellate court applies a de novo standard of review. State v. Gaines, 9th Dist. Lorain

No. 00CA008298, 2004-Ohio-3407, ¶ 9. “The Supreme Court of Ohio has found that the

statutory speedy trial provisions set forth in R.C. 2945.71 are coextensive with Ohio and federal

constitutional speedy trial provisions.” Gaines at ¶ 9, citing State v. O’Brien, 34 Ohio St.3d 7

(1987), paragraph one of the syllabus.

{¶6} R.C. 2945.71(C)(2) states that “[a] person against whom a charge of felony is

pending * * * [s]hall be brought to trial within two hundred seventy days after the person’s

arrest.” “[E]ach day during which the accused is held in jail in lieu of bail on the pending

charges shall be counted as three days.” R.C. 2945.71(E). “Upon motion made at or prior to the

commencement of trial, a person charged with an offense shall be discharged if he is not brought

to trial within the time required by [R.C. 2945.71].” R.C. 2945.73(B).

{¶7} An accused may waive his or her speedy trial rights as long as the waiver is

knowingly and voluntarily made. State v. Kovacek, 9th Dist. Lorain No. 00CA007713, 2001 WL

577664, *4 (May 30, 2001). While a waiver may be limited in duration, a written waiver that 3

expressly waives the defendant’s right to a speedy trial under the statute without mentioning

specific time periods is considered to be unlimited in duration. State v. Troutman, 9th Dist.

Lorain No. 09CA009590, 2010-Ohio-39, ¶ 24, citing State v. Skorvanek, 9th Dist. Lorain No.

08CA009399, 2009-Ohio-3924, ¶ 13. “This Court has further held that, ‘when a waiver fails to

include a specific date as the starting point for the tolling time, the waiver is deemed to be

effective from the date of arrest.’” Skorvanek at ¶ 13, quoting State v. Bray, 9th Dist. Lorain No.

03CA008241, 2004-Ohio-1067, ¶ 8. “Following an express, written waiver of unlimited

duration by an accused of his right to a speedy trial, the accused is not entitled to a discharge for

delay in bringing him to trial unless the accused files a formal written objection and demand for

trial, following which the state must bring the accused to trial within a reasonable time.”

O’Brien, 34 Ohio St.3d 7, at paragraph two of syllabus; Bray at ¶ 8. It follows that “once an

accused revokes his unlimited waiver, the strict requirements of [R.C. 2945.71 et seq.] no longer

apply.” Troutman at ¶ 24, quoting Skorvanek at ¶ 14.

{¶8} In this case, Brewer was arrested in Massachusetts on August 26, 2013. On

September 9, 2013, the trial court issued a journal entry which read, “Defendant waives statutory

time for speedy trial pursuant to R.C. 2945.71 et seq.” Both Brewer and the trial judge signed

the waiver. On December 6, 2013, at the time Brewer filed a notice of withdrawal of his NGRI

plea, Brewer notified the trial court that he was withdrawing his speedy trial waiver and re-

instating his original plea of not guilty. At Brewer’s request, trial was scheduled for February 5,

2014. Due to a previously scheduled capital murder, the trial court rescheduled Brewer’s trial

for March 10, 2014. When the parties appeared on that date, Brewer moved to dismiss the

indictment on speedy trial grounds. The trial court promptly denied the motion, noting that 4

Brewer was brought to trial in a reasonable amount of time given that holding a trial in February

was not possible due to scheduling conflicts.

{¶9} On appeal, Brewer argues that the waiver he signed on September 9, 2013, is

unenforceable because it appeared on a standardized pretrial form produced by the Lorain

County Court of Common Pleas. Brewer contends the waiver he signed is akin to an

unenforceable adhesion contract, meaning that the only tolling event that occurred in this case

was the filing of his NGRI plea. This Court has previously held that a form journal entry with

identical language constituted a valid speedy trial waiver of unlimited duration. Skorvanek,

2009-Ohio-3924, ¶ 19. Brewer signed his name directly below the waiver language that was

written in all capital letters. See Troutman, 2010-Ohio-39, ¶ 23. The form’s legitimacy is further

reinforced by the fact that Brewer filed a written withdrawal of his speedy trial waiver on

December 6, 2013, and he refused to sign the waiver portion of the form from that point forward.

Id. Under these circumstances, Brewer’s contention that his waiver was unenforceable is

without merit.

{¶10} Brewer further contends that the triple count provision set forth by R.C.

2945.71(E) was in effect in this case and that the State failed to bring him to trial within the 90-

day window. As noted above, Brewer was arrested on August 26, 2013, and he signed a speedy

trial waiver shortly thereafter. While he subsequently filed a written withdrawal of his waiver,

we are mindful that the strict requirements of R.C. 2945.71 were no longer applicable after the

time of his withdrawal and the State was required to bring Brewer to trial in a reasonable time.

O’Brien, 34 Ohio St.3d 7, at paragraph two of syllabus; Bray at ¶ 8. When Brewer withdrew his

waiver on December 6, 2013, the trial court promptly scheduled the final pretrial for January 16,

2014, and set the trial date on February 6, 2014. Given that the pretrial proceedings up to that 5

point had focused on competency issues relating to Brewer’s NGRI plea, the trial schedule set

forth by the trial court was exceedingly reasonable. While Brewer was not brought to trial until

March 10, 2014, that was due to the fact that the trial court had previously scheduled a capital

murder case for trial in February 2014. A trial court may continue a trial date without violating a

defendant’s right to a speedy trial if the purpose and length of the continuance are reasonable.

State v. Meyers, 9th Dist. Summit Nos. 23864, 23903, 2008-Ohio-2528, ¶ 39. Here, the trial

court’s need to resolve the capital murder case was reasonable and resulted in only a minimal

delay for Brewer.

{¶11} As Brewer was brought to trial within a reasonable time after he withdrew his

speedy trial waiver, the first assignment of error is overruled.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED BY OVERRULING APPELLANT’S CRIM.R. 29 MOTION FOR ACQUITTAL BECAUSE THERE WAS INSUFFICIENT EVIDENCE THAT APPELLANT CHANGED HIS ADDRESS.

{¶12} In his second assignment of error, Brewer contends that the trial court erred by

denying his Crim.R. 29 motion for acquittal. This Court disagrees.

{¶13} In support of his assignment of error, Brewer contends that the trial court

considered improper evidence when ruling on his Crim.R. 29 motion. Brewer further maintains

that, regardless of the admissibility of the State’s evidence, the State did not prove that Brewer

violated the sex offender reporting requirements mandated by R.C. 2950.05(F)(1).

{¶14} “R.C. 2950.05(A) requires the class of sex offenders to which it applies to notify

the sheriff of ‘any’ change of address.” State v. Combs, 12th Dist. Brown No. CA2013-08-008,

2014-Ohio-2117, ¶ 8. In this case, Brewer was convicted of failing to register a change of

address in violation of R.C. 2950.05(F)(1), which states, “No person who is required to notify a 6

sheriff of a change of address pursuant to division (A) of this section * * * shall fail to notify the

appropriate sheriff in accordance with that division.” R.C. 2950.05(I) provides that “change of

address” encompasses “any circumstances in which the old address for the person in question no

longer is accurate, regardless of whether the person in question has a new address.”

{¶15} Crim.R. 29(A) provides, in relevant part:

The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state’s case.

{¶16} When reviewing the sufficiency of the evidence, this Court must review the

evidence in a light most favorable to the prosecution to determine whether the evidence before

the trial court was sufficient to sustain a conviction. State v. Jenks, 61 Ohio St.3d 259, 279

(1991).

An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to 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 fact could have found the essential elements of the crime proven beyond a reasonable doubt.

Id. at paragraph two of the syllabus.

{¶17} The State presented the following evidence at trial. In 2005, Brewer was

convicted of sexual battery in violation of R.C. 2907.03. Consequently, Brewer was required to

comply with Ohio’s sex offender reporting requirements for a period of ten years. On December

21, 2012, Brewer registered that he was residing at 1915 West 21st Street, Lorain, Ohio. Deputy

Deborah Hurlburt of the Lorain County Sheriff’s Department verified that Brewer had given the

correct address. Due to an unrelated matter, Officer Richard Rhines of the Ohio Department of 7

Rehabilitation and Correction began supervising Brewer in 2012. Brewer was scheduled to

report for a meeting with Officer Rhines on March 19, 2013. When Brewer failed to report for a

meeting, Officer Rhines spent the next six weeks attempting to locate Brewer. Officer Rhines

testified that Brewer was declared “at large” on May 2, 2013.

{¶18} Kenneth Weisman, Brewer’s landlord at the West 21st Street address, testified

that he rented Brewer an apartment in 2012. Due to a failure to pay rent, Weisman served

Brewer with a “notice to leave premises” on April 7, 2013, and asked him to be out of his

apartment three days later. Weisman and Brewer reached an agreement where Brewer could stay

an additional month in exchange for the security deposit. Weisman did not see Brewer at the

apartment in May 2013, and, approximately one month later, he disposed of the items remaining

in Brewer’s apartment.

{¶19} On May 29, 2013, Officer Rhines contacted Deputy Hurlburt after learning that

Brewer was in Boston, Massachusetts. The following day, Deputy Hurlburt went to the West

21st Street address in Lorain and confirmed that Brewer was not there. At that point, the Adult

Parole Authority placed a holder on Brewer and he was eventually extradited back to Ohio.

Deputy Hurlburt testified that while she could not locate Brewer at the West 21st Street, Brewer

never registered a change of address.

{¶20} Brewer contends that this Court should not consider Officer Rhines’ testimony in

analyzing the sufficiency of the evidence due to the fact that, in Brewer’s view, it was admitted

in violation of Evid.R. 403 and Evid.R. 404. However, whether this testimony was properly

admitted is irrelevant as this Court has recognized that “an appellate court must consider all of

the evidence presented by the State in evaluating the sufficiency of the evidence, even if the

evidence was improperly admitted by the trial court.” State v. Sadeghi, 9th Dist. Wayne No. 8

14AP0051, 2016-Ohio-744, ¶ 22, citing State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, ¶

19; Lockhart v. Nelson, 488 U.S. 33, 34 (1988). Accordingly, we will consider all of the

evidence presented by the State in evaluating whether the trial court erred in denying Brewer’s

Crim.R. 29 motion.

{¶21} The evidence presented at trial, when construed in the light most favorable to the

State, was sufficient to demonstrate Brewer failed to comply with the sex offender reporting

requirements. Brewer was required to notify the sheriff of any change of address. R.C.

2950.05(F)(1). Though Brewer suggests that the evidence is unclear as to whether he had an

“intent to return,” R.C. 2950.05(I) makes clear that “change of address” includes “any

circumstances in which the old address for the person in question no longer is accurate,

regardless of whether the person in question has a new address.” Here, the evidence showed

Brewer failed to pay his rent at his apartment in Lorain and, in early April 2013, he was given

one month to vacate the premises. The evidence further showed that Brewer’s parole officer was

unable to locate Brewer at that address from March 19 to May 2, 2013, and Brewer’s landlord

did not see Brewer at the apartment during the entire month of May. Despite never registering a

change of address, Brewer was located in Boston, Massachusetts, later that month. The

aforementioned evidence was sufficient to demonstrate that Brewer was no longer residing at the

Lorain apartment and that he failed to notify the sheriff that that address was no longer accurate,

in violation of R.C. 2950.05.

{¶22} The second assignment of error is overruled.

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED BY ALLOWING TESTIMONY THAT WAS SUBSTANTIALLY MORE PREJUDICIAL THAN PROBATIVE PERTAINING TO APPELLANT’S REGISTRATION OBLIGATIONS. 9

{¶23} In his third assignment of error, Brewer contends that the trial court violated

Evid.R. 403(A) and Evid.R. 404(B) by allowing Officer Rhines to testify that Brewer was on

post-release control at the time of the alleged offense. Brewer contends that Officer Rhines’

testimony served only to confuse the jury and paint Brewer in a negative light. This Court

disagrees.

{¶24} Evid.R. 403(A) states that “[a]lthough relevant, evidence is not admissible if its

probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the

issues, or of misleading the jury.” Evid.R. 404(B) provides that “[e]vidence of other crimes * *

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

therewith.” The decision to admit or exclude evidence at trial lies within the sound discretion of

the trial court. State v. Stover, 9th Dist. Wayne No. 13CA0035, 2014-Ohio-2572, ¶ 7. An abuse

of discretion indicates that the trial court’s attitude was unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

{¶25} A review of the trial transcript reveals that the State attempted to lay a foundation

for Officer Rhines’ testimony by asking how he was familiar with Brewer. Officer Rhines

explained that he was assigned to supervise Brewer while Brewer was on post-release control for

an unrelated escape conviction. Officer Rhines stated that Brewer was required to meet certain

conditions, including reporting to Officer Rhines for a number of meetings. Defense counsel

objected on the basis that testimony regarding sanctions for an unrelated offense was irrelevant

and unduly prejudicial. After a lengthy discussion outside the presence of the jury, the trial court

instructed the jury that Brewer’s alleged escape conviction was immaterial to the current case,

stating “We’re not here to say whether [Brewer] was convicted of an escape and therefore had to

report to [Officer Rhines].” The trial court further stated that Officer Rhines could only testify 10

regarding his personal knowledge of Brewer’s whereabouts at any particular point in time. In

conclusion, the trial court stated, “So with that you may ask your next question, but anything

regarding parole violations or potential parole violations are to be disregarded and stricken from

this case. It might pertain to another case sometime about parole violations, but not this case[.]”

{¶26} The trial court did not abuse its discretion by issuing a limiting instruction to the

jury and permitting Officer Rhines’ to testify about his personal knowledge of Brewer’s

whereabouts. In response to defense counsel’s objection, the trial court instructed the jury that

the testimony about Brewer’s escape conviction, as well as any sanctions relating to that

conviction, was irrelevant to this matter. The trial court further ordered that the testimony was to

be stricken from the record. The limiting instruction “minimized the likelihood of any undue

prejudice regarding the jury’s consideration of [Officer Rhines’] testimony.” State v. Jones, 135

Ohio St.3d 10, 2012-Ohio-5677, ¶ 194. Moreover, “[a] presumption exists that the jury has

followed the instructions given to it by the trial court.” Id., quoting State v. Murphy, 65 Ohio

St.3d 554, 584 (1992). After the trial court gave the limiting instruction, Officer Rhines was not

permitted to offer any additional testimony about the escape charge or the details of Brewer’s

post-release control. Under these circumstances, where the trial court limited Officer Rhines’

testimony to his personal knowledge of Brewer’s whereabouts, the trial court did not abuse its

discretion in admitting Officer Rhines’ testimony.

{¶27} Brewer’s third assignment of error is overruled.

III.

{¶28} Brewer’s assignments of error are overruled. The judgment of the Lorain County

Court of Common Pleas is affirmed.

Judgment affirmed. 11

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

DONNA J. CARR FOR THE COURT

HENSAL, P. J. SCHAFER, J. CONCUR.

APPEARANCES:

STEPHEN P. HANUDEL, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant Prosecuting Attorney, for Appellee.