State v. Sherdene A. Brown
| Decision Date | 09 July 1993 |
| Docket Number | 92-P-0055,93-LW-3823 |
| Parties | STATE OF OHIO, Plaintiff-Appellee v. SHERDENE A. BROWN, Defendant-Appellant. CASE |
| Court | Ohio Court of Appeals |
Criminal Appeal from Municipal Court, Ravenna Branch, Case No. R 92 CRB 0093 S.
ATTY DAVID W. NORRIS, PORTAGE COUNTY PROSECUTOR, ATTY. EUGENE L MULDOWNEY, ASSISTANT PROSECUTOR, 466 South Chestnut Street Ravenna, Ohio 44266 (For Plaintiff-Appellee).
ATTY DEA L. CHARACTER-FLOYD, ATTY. LAWRENCE R. FLOYD, 3645 Warrensville Center Road, #105, Shaker Hts., Ohio 44122-5210 (For Defendant-Appellant).
HON. DONALD R. FORD, P. J., HON. JAMES BROGAN, J., Second Appellate District, sitting by assignment, HON. WILLIAM H. WOLFF, JR., J., Second Appellate District, sitting by assignment.
This appeal comes from the Portage County Municipal Court, Ravenna Branch, where appellant, Sherdene Brown, was found guilty on one count of complicity to hazing, and one count of complicity to assault. Appellant timely appeals her conviction. The underlying facts, although lengthy, will be stated in abbreviated form at this juncture.
From February 4, 1991 through April 8, 1991, the Epsilon Gamma Chapter of Alpha Kappa Alpha Sorority, Inc. (AKA) at Kent State University (KSU) conducted an underground pledge "line," which is the traditional, but now unpermitted, process of pledging candidates in the black greek system. As of 1990, the National AKA Sorority eliminated their formal pledging process and substituted it with a Membership Intake Process consisting of 72 hours of workshops and an initiation ceremony only. In accordance with AKA Bylaws, sanctions would be instituted for those members who pledge a line according to the "old school" tradition as in the instant case.
Appellant, a 26-year old black woman with a Bachelor's Degree from KSU was, at this time, a graduate student, and had agreed to assist in pledging this new "line."
The pledges were taken through several stages: The pre-pledge period (Feb. 4 -Feb. 8), the Ivy stage (Feb. 8 - Feb. 24), and the Goddess stage (April 1 - April 8). These stages included, but were not limited to, activities such as history lessons, stepping (linedancing) lessons, projects, tasks, skits, sisterhood tests, and culminated with increasingly severe physical discipline with each successive stage.
This "physical discipline," which took place primarily during the Goddess stage, is the activity at issue in this appeal, and consisted of open-handed smacks or slaps to the face and hands, pushes to the shoulders, punching, and finally paddling (aka "taking wood").
Various past and present AKA pledges, some of whom became members, testified to incidents of the following severe discipline, which appellant either inflicted upon the pledges herself, or actively coerced: nose bleeds after being forced to stand on their heads, passing out after being struck in the temple, a black eye after being smacked, getting "knocked out" after receiving a bloody nose, and sustaining bruised and bleeding buttocks after being paddled anywhere between twelve and one hundred plus times with a special paddle called "the enforcer." The enforcer was a wooden paddle wrapped with silver duct tape.
During the most intense week, the Goddess stage, the members had arranged to meet the pledges in Kent, Ohio, where some physical discipline took place. They then drove the pledges to Cleveland, Ohio, for the most severe paddling sessions. The testimony adduced at trial indicated that appellant was present for, and either administered or assisted in administering the paddlings despite the fact that the pledges' buttocks bled through their clothes, and despite their complaints about the severity of the beatings.
As a result of these paddlings, two of the pledges received permanent scars which cannot be corrected by reconstructive surgery. In addition, several pledges testified that they were "encouraged" not to drop out of the pledging process, and were offered promises of lighter discipline in exchange for staying in. One pledge was told not to visit a doctor because the visit would be documented, while another was forced by appellant to make a pledge of secrecy so as not to "get hurt".
Appellant admitted her awareness that the paddling, if not done correctly, was very dangerous and could cause injury to the legs or back. She also admitted that she was aware of scarring on other past pledges. She contends, however, that she did not intend to hurt anyone, and was merely carrying but the time-honored traditions that had been taught and done to her. She was apparently told that surviving this process was the only way for a black woman to gain respect among her peers in the community.
On December 24, 1991, a Portage County Grand Jury indicted appellant on one count of complicity to assault in violation of R.C. 2923.03(A)(2) and 2903. 13(A) & (C), a misdemeanor of the first degree, and one count of complicity to hazing under R.C. 2923.03(A) and 2903.31(A), a misdemeanor of the fourth degree. On motion by the state, the case was transferred to Municipal Court onJanuary 9, 1992. This case was then tried to the bench.
On April 28, 1992, the trial court found appellant guilty on both counts and sentenced her to one-hundred eighty days in jail on the assault charge, thirty days on the hazing charge, and imposed a fine of two-hundred fifty dollars. On May 6, 1992 appellant's jail time was suspended in lieu of eighteen months of supervised probation with the conditions that she perform two-hundred hours of community service, undergo a mental health evaluation and any required counseling stemming from the evaluation, and submit to home incarceration for sixty days. This sentence was suspended pending appeal.
Appellant raises the following assignments of error:
Appellant's first assignment of error states that by failing to produce a bill of particulars, the state was allowed to proceed without providing her with a statement of what specific acts gave rise to criminal conduct. Appellant moved for a Bill of Particulars on February 28, 1992, requesting a statement from the prosecution setting forth the dates and locations of the alleged criminal actsand most importantly, the act or acts committed or participated in by appellant which gave rise to criminal conduct.
Crim. R. 7(E), enacted in 1973, provides that:
"When the defendant makes a written request within twenty-one days after arraignment but not later than seven days before trial, or upon court order, the prosecuting attorney shall furnish the defendant with a bill of particulars setting up specifically the nature of the offense charged and of the conduct of defendant alleged to constitute the offense.***" (Emphasis added.)[1]
We must first address the state's argument that pursuant to State v. Gutilla (1950), 59 Ohio L. Abs. 289, at paragraph two of the syllabus, the foregoing rules do not apply in misdemeanor actions before a municipal court. We disagree with the state's contention. Most notably, Gutilla was decided prior to the enactment of the Ohio Rules of Criminal Procedure, and cannot be viewed as construing them. Several more recent cases, namely State v. Neiheisel (1986), 29 Ohio Misc. 2d 1, and State v. Fowler (1963), 174 Ohio St. 362 provide insight into the current treatment of this issue.
The Supreme Court held in Fowler that:
"The right of an accused to be informed of the exact nature of the offense with which he is charged *** applies equally to cases where one is charged with a misdemeanor or a felony; the basic right is the same in either instance ***." (Emphasis added.) Id. at 364.
The Hamilton County Municipal Court held in Neiheisel at syllabus that:
"A defendant charged with a misdemeanor in municipal court has a right under Crim. R. 7(E) to a bill of particulars."
In so holding, the court relied on both Fowler, and Dawn v. Pate (Mar. 22, 1984), Montgomery App. No. 8372, unreported, at 10. The Pate court stated that Crim. R. 7(E) applies to all courts, and that a criminal defendant is entitled to a bill of particulars in the following situation:
"when the charge contained in the complaint, indictment or information is indefinite or vague and does not fully inform him of the offense with which he is charged ***." Pate at 10.
Taking the foregoing excerpts into consideration, we agree with appellant that Crim. R. 7(E) applies to a misdemeanor case in municipal court. However, as for appellant's argument that she actually deserved a bill of particulars,...
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