State v. Brown
| Decision Date | 13 December 2013 |
| Docket Number | CASE NO. 11 MA 117 |
| Citation | 2013 Ohio 5528 |
| Parties | STATE OF OHIO PLAINTIFF-APPELLEE v. MILIOUS BROWN DEFENDANT-APPELLANT |
| Court | Ohio Court of Appeals |
For Plaintiff-Appellee:
Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
For Defendant-Appellant:
Atty. Megan Graff
Comstock, Springer & Wilson Co., L.P.A.
JUDGES:
Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
{¶1} Appellant Milious Brown appeals his conviction in the Mahoning County Common Pleas Court on two counts of gross sexual imposition. On appeal, Appellant contends that his convictions were not supported by sufficient evidence and against the manifest weight of the evidence. Appellant argues that the testimony of his child victims was insufficient to establish the alleged offenses and motivated by the father of one of the victims who was seeking custody of the child. Appellant also contends that the trial court should have granted his motion for mistrial. Appellant's three assignments of error are without merit and are overruled. The judgment of the trial court is affirmed.
{¶2} On March 6, 2009, 14 year old M.T. was giving Child X and Child Y a bath. While she was bathing the girls, one of whom is her younger sister, she asked them if Appellant had ever touched either of them under their clothes. The older of the two girls, Child X, who was five years old at the time, told M.T. that Appellant had touched her genitals. Child X also told her sister that Appellant had touched Child Y, her half-sister, who was four at the time, in the same way. Although the trial court did not allow M.T. to testify on the subject at trial, Appellant suggests that M.T.'s question was not prompted by anything the children said or did, but was prompted by some other reason.
{¶3} That same night M.T. called her father, Marco T. "("Marco"), asked him to come home immediately, and explained what Child X and Child Y had told her. While M.T. was speaking to her father, his then-girlfriend, Tami Kushnir, supervisedthe girls who were finishing their bath. The children told Kushnir that if she would "pinky promise" that she would not tell anyone else, then they would tell her their secret. (Tr. Vol. II, p. 276.) The children described to Kushnir multiple forms of sexual abuse involving various sex acts performed by Appellant on each child in their mother's home, at night, while the rest of the family slept. According to Ms. Kushnir: Child Y told her that Appellant "would kiss, tickle, and lick * * * her chest area" and "do the same thing to her bad word[vaginal area], and she pointed to her private area" that he would manipulate himself, and lick inside her anus. (Tr. Vol. II, pp. 275, 276.) Child X separately described the same actions, that Appellant would "kiss and tickle and lick" her breasts and her "bad word." (Tr. Vol. II, p. 276.)
{¶4} Marco reported the allegations that same night and was instructed by the sheriff's department to come in the following morning. Ms. Kushnir, M.T., and Marco accompanied Child X and Child Y to the police department the next morning and gave statements. Mahoning County Children Services Agency was contacted and the family was referred to the emergency room and to the Child Advocacy Center. Both Child X and Child Y were taken to the emergency room by the family, and the matter was referred to Child and Family Services. As a result of the investigation, custody of Child X was transferred to Marco.
{¶5} Melissa Bennet, a Department of Child and Family Services investigator, was assigned the case on March 9, 2009 and immediately contacted the girls' mother to identify herself and schedule a date when she could meet with the mother, Child Y, and Child Y's siblings who were living in the house in Campbell. The investigator went to the house that evening and met with the mother, Child Y,and her three siblings (not including Child X, who remained with her father). The investigator interviewed Child Y alone, in a room in the house, but separate from her mother and siblings. The investigator described Child Y, who was then four years old, as (Tr. Vol. II, p. 327.) Child Y told the investigator that Appellant (Tr. Vol. II, p. 326.)
{¶6} A few days later, on March 12th or 13th 2009, the investigator conducted separate, videotaped, forensic interviews of Child Y and Child X. Child Y's interview was played for the jury at trial. Apart from any examination that took place in the emergency room on March 7th 2009, Child Y did not undergo an examination or treatment because her mother would not agree to it. The investigator found Child Y credible and the words she used developmentally appropriate. (Tr. Vol. II, pp. 358359.) When Child X was taken by her father, sister, and Ms. Kushnir to her forensic interview, Dr. Paul McPherson conducted a physical exam. At trial, Dr. McPherson explained the evaluation process and gave his medical conclusion that the results of his examination of Child X were consistent with sexual abuse. (Tr. Vol. III, p. 396.) As a result of the diagnosis, Child X was referred to Amy Chichak, a family counselor with Child and Family Services.
{¶7} Ms. Chichak began treatment of Child X for sexual abuse on March 30, 2009. (Tr. Vol. II, p. 298.) During her ongoing treatment with Ms. Chichak, Child X described to the counselor the same types of interactions with Appellant that she described to Ms. Kushnir and her sister. Over the first months of treatment,according to Ms. Chichak, she also described Appellant touching her "boobies, her vagina and her butt," that he "would rub his balls up against her, that he would make her suck his penis, that stuff had come out and it tasted gross, that she had told her mom and her vagina would hurt and it would get red and mom would put medication on it." (Tr. Vol. II, p. 300.) The counselor explained that Child X did not disclose every type of abuse that occurred during her initial appointment or during each session and that her disclosures and discussions of the incidents were consistent with a developing child remembering various things that had happened to her as she learned how to interact with the counselor. (Tr. Vol. II, pp. 307-318.) In the counselor's professional opinion, Child X was credible, and her behavior in counseling did not suggest that she was being coached or fed things to say. (Tr. Vol. II, pp. 302, 318.)
{¶8} Appellant was indicted on May 28, 2009. The indictment included three counts, one count of gross sexual imposition with regard to Child X (count one), one count of gross sexual imposition with regard to Child Y (count two), and one count of rape with regard to a third child. This appeal deals only with the two counts of gross sexual imposition, which were tried together.
{¶9} Child Y did not testify at trial. Child X's testimony at trial was consistent with her prior statements to the various adults who evaluated her. She described Appellant waking her up at night and either staying with her in her room or taking her into the living room while her mother was sleeping. After removing their clothing, Appellant would touch her breasts/chest area with his hands and her vaginal and anal areas with his genitals. Child X said she witnessed Appellant doing the samethings to her sister, Child Y. (Tr. Vol. II, pp. 224-236.) The jury returned guilty verdicts on both gross sexual imposition charges
{¶10} Appellant's sentencing was originally set for May 9, 2011, but was rescheduled for June on Appellant's motion. Appellant's trial counsel withdrew at the June hearing, and a third date was scheduled in July. The trial court denied a pre-hearing motion for continuance seeking a presentencing investigation, and sentenced Appellant at the scheduled July 11, 2011 hearing to five years on each count, to be served consecutively. Appellant filed a timely appeal of his sentence.
The State of Ohio failed to introduce sufficient evidence to prove beyond a reasonable doubt that defendant-appellant, Milious Brown, committed gross sexual imposition.
The jury verdict finding Mr. Brown guilty of two counts of gross sexual imposition is against the manifest weight of the evidence.
{¶11} Although Appellant's first and second assignments of error present different legal bases for reversing a conviction, Appellant's argument under both assignments is identical: the convictions should be reversed because Child X's father sought custody of Child X and allegedly he and his girlfriend, who were present during all interviews with Child X, were the primary source of the informationprovided to medical witnesses and investigators. Because Appellant presents the same argument in both assignments they will be considered together.
{¶12} To discharge its burden when prosecuting a criminal offense, "probative evidence must be offered" by the state on "every material element which is necessary to constitute the crime." State v. Martin, 164 Ohio St. 54, 57 (1955). Our review of the jury's verdict is limited to whether there was evidence presented, which, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 273 (1991). "The verdict will not be disturbed unless the appellate court finds that reasonable minds could not reach the conclusion reached by the trier of facts." Id. "It must be kept in mind by the appellate court that the jury heard all...
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