State v. Brown, CASE NO. 12 MA 118

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtDeGenaro, P.J.
Citation2014 Ohio 4158
Docket NumberCASE NO. 12 MA 118
Decision Date16 September 2014

2014 Ohio 4158


CASE NO. 12 MA 118


September 16, 2014


CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas Court, Case No. 09 CR 557.

JUDGMENT: Affirmed.

For Plaintiff-Appellee:

Attorney Paul J. Gains
Prosecuting Attorney
Attorney Ralph M. Rivera
Assistant Prosecuting Attorney
21 W. Boardman St., 6th Floor
Youngstown, OH 44503

For Defendant-Appellant:

Attorney John B. Juhasz
7081 West Blvd., Suite 4
Youngstown, OH 44512-4362

Hon. Mary DeGenaro
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite

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DeGenaro, P.J.

{¶1} Defendant-Appellant, Milous Brown, appeals the June 18, 2012 judgment of the Mahoning County Court of Common Pleas convicting him of one count of gross sexual imposition and sentencing him accordingly. On appeal, Brown contends: 1) there was insufficient evidence to convict him; 2) the verdict of guilt was against the manifest weight of the evidence; and 3) the trial court erred by enhancing his sentence to that of mandatory jail time based upon convictions that were indicted contemporaneously but occurred after the events giving rise to the present case. These assignments of error are meritless and the judgment of the trial court is affirmed.

Facts and Procedural History

{¶2} On May 28, 2009, Milous Brown was indicted on two counts of gross sexual imposition, R.C. 2907.05(A)(4) & (B)1, both third degree felonies, and rape, R.C. 2907.02(A)(1)(b) & (B), a felony punishable by life imprisonment. The gross sexual imposition counts were severed and tried separately resulting in convictions. In State v. Brown, 7th Dist. No. 11 MA 117, 2013-Ohio-5528 (Brown I), this court affirmed the judgment of the trial court. The present appeal is from the June 5, 2012 bench trial on the rape charge, wherein Brown was convicted of the lesser included offense of gross sexual imposition.

{¶3} The State's first witness was the victim C.W. She testified that she was eight years old in the early summer of 2006 and lived in Campbell, Ohio, with her mother and her step-father at the time. She knew Brown as a family friend through Julie Mulac, who lived with Brown nearby. C.W. had been to their house fifteen to twenty times prior to the incident giving rise to this case and not again thereafter.

{¶4} C.W. further testified that sometime after Memorial Day but before her birthday on July 20th, 2006, Brown, Mulac, and some of Mulac's children came to C.W.'s house to go swimming. When everyone was inside of the house, C.W. and Brown were alone outside in the pool. Brown picked her up by grabbing her from behind, placing his left arm over her chest and moving his right arm towards the bottom of her bathing suit. Brown then moved her bathing suit aside and put his fingers into her vagina. C.W. broke

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away from him screaming for her mother. C.W.'s mother met her at the back doorway of the house. C.W. did not tell her mother what happened immediately. She was afraid her mother might have "freaked out and just been really scared or upset about it." C.W.'s mother told Mulac and Brown it was time for them to go and they left.

{¶5} C.W. told her mother about the incident a few days later by writing it down on a piece of paper and giving it to her mother. She then told her mother what happened and her mother called the police. C.W. talked to someone at the Campbell Police Department and Children Services. C.W. ended her direct testimony by identifying Brown as the perpetrator.

{¶6} On cross examination C.W. testified that prior to the incident four of the children and Brown were in the pool, and she confirmed that the only two people outside at the time of the incident were Brown and herself. Brown was the only adult to get into the pool. C.W. was not taken to a doctor for examination and only spoke to the police and Children Services.

{¶7} Sergeant David Michael Taybus of the Campbell Police Department testified that he was called to the victim's home in regards to a sexual incident, either imposition or rape. Once informed that the matter involved a child, he called Children Services pursuant to department protocol. He took the initial report from C.W.'s mother and took the handwritten note, but he never spoke to C.W. and his involvement with the case ended.

{¶8} Lenore Blanton, retired investigator from the Mahoning County Children Services abuse unit, testified that she conducted a home visit and spoke with C.W., who disclosed to her the details of the incident. C.W. was not taken to the Child Advocacy Center due to the fact that three to four weeks had passed by the time Blanton had talked to C.W. Blanton forwarded all the information she had collected to the Campbell Police Department and had no other involvement in the case.

{¶9} The State next presented the testimony of child abuse pediatrician, Dr. Paul McPherson. He testified that he had never met C.W., did not treat her, and never saw the

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file. Instead, McPherson answered generalized questions about child sexual abuse based upon his training, education and experience. McPherson testified that the decision to have a child submit to a sexual assault examination is made on a case-by-case basis. He also described the concept of delayed disclosure, and that it is more likely to occur when the victim knew the perpetrator.

{¶10} The State's final witness was Sergeant TJ Assion who testified that in the Mahoning County Jail each inmate is assigned a pin number during booking to determine the phone calls placed by that individual. Assion identified a disk of recorded phone conversations made by Brown while he was in jail; select calls were then played for the trial court.

{¶11} The defense presented one witness, Julie Mulac, who dated Brown from May 2003 until January 2012. They have one child together. Mulac testified that she, Brown and her five children went to the victim's home to swim on May 27, 2006, at about noon, and they stayed until about six or seven that evening. Brown never got in the pool; he would toss the children in by grabbing an arm and a leg and throwing them, which was the only interaction that she saw between Brown and C.W. Mulac said C.W. did not scream or call for her mother.

{¶12} On cross, Mulac admitted to spending a lot of time talking about the case and getting people to cooperate as witnesses. Brown instructed her to contact C.W. to "find out her angle." Mulac contradicted her earlier testimony and admitted seeing Brown in the swimming pool. Mulac also admitted that she told Brown in a phone conversation that it was good that she was dating someone else now so the prosecutor could not say that the only reason she was testifying was due to her relationship with him. Regarding the incident with C.W., Brown told her that "he didn't remember what happened."

{¶13} Brown was acquitted of the charge of rape; the trial court found that the element of penetration was not proven beyond a reasonable doubt. The trial court did find that Brown had sexual contact with C.W., who was less than thirteen at the time in violation of 2907.05(A)(4). The trial court convicted Brown of gross sexual imposition rather than rape, reasoning that there was an absence of physical evidence; C.W.'s recall of the incident was uncorroborated; and C.W.'s testimony was otherwise credible to an

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extent although inconsistent with the note given to her mother as to the element of penetration. Sentencing was held the following day. The State argued that Brown had two previous convictions for gross sexual imposition, which would make the jail sentence mandatory. Brown argued that those convictions were based on events that occurred after this incident. The trial court imposed a mandatory five-year sentence, to run consecutive to the sentence imposed for his two previous convictions for gross sexual imposition in Brown I, and classified him as a tier II sex...

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