[Cite as State v. Brown, 2016-Ohio-7221.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103491
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
FREDRIC A. BROWN
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-587887-A
BEFORE: E.A. Gallagher, P.J., McCormack, J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: October 6, 2016
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Cuyahoga County Public Defender
BY: Jeffrey Gamso
Assistant Public Defender
310 Lakeside Ave., Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Marcus A. Henry
Holly Welsh
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, P.J.:
{¶1} Defendant-appellant Fredric Brown appeals his convictions for trafficking in
persons in the Cuyahoga County Court of Common Pleas. For the following reasons, we
affirm.
Facts and Procedural Background
{¶2} Brown was indicted on August 5, 2014 on two counts of trafficking in
persons naming two separate victims, two counts of compelling prostitution and one
count of possessing criminal tools. The case proceeded to a bench trial on May 13,
2015. Prior to trial, the state moved to amend both counts of trafficking in persons to
remove what it described as a “typo.” The alleged “typo” was the inclusion in the
indictment of an additional mens rea of knowledge on the part of Brown that the
respective victims in the two counts of trafficking in persons were less than 16 years of
age at the time of the offense. Brown’s trial counsel did not object to the amendment,
conceding that such mens rea regarding the age of the victims was not an element of the
offense pursuant to R.C. 2905.32(A)(2)(a). The trial court allowed the amendments, the
case proceeded to trial and Brown was found guilty on all five counts.
{¶3} The trial court found Brown’s convictions for trafficking in persons and
compelling prostitution as to the separate victims to be allied offenses and merged the
offenses. The trial court also merged Brown’s conviction for possessing criminal tools
into the above counts. The state elected to proceed to sentencing under the two counts of
trafficking in persons. The trial court imposed a 10-year prison term on the first count
of trafficking in persons and a 13-year prison term on the second count. The court
ordered the two terms to be served concurrently. Brown was also found to be a tier three
sex offender.
I. The Amendment of the Indictment
{¶4} In his first assignment of error, Brown argues that the trial court violated his
right to an indictment by a grand jury under Section 10, Article I of the Ohio Constitution
and the Fifth Amendment of the United States Constitution by allowing the amendment of
the indictment for the purposes of deleting the extraneous mens rea regarding the age of
the victims.
{¶5} The parties do not dispute that the deleted language was not required to
establish a violation of trafficking in persons under R.C. 2905.32(A)(2)(a). Brown
instead argues that he was prejudiced by the trial court’s amendment because the state
was not held to the additional, heightened burden stated in the indictment returned by a
grand jury.
{¶6} Under Crim.R. 7(D), a court may amend an indictment “at any time” if the
amendment does not change “the name or identity of the crime charged.” State v.
Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 69. An amendment that
changes the penalty or degree of the charged offense changes the identity of the offense
and is not permitted by Crim.R. 7(D). Id., citing State v. Davis, 121 Ohio St.3d 239,
2008-Ohio-4537, 903 N.E.2d 609, syllabus. However, “[a]s long as the state complies
with Crim.R. 7(D), it may cure a defective indictment by amendment, even if the original
indictment omits an essential element of the offense with which the defendant is
charged.” Id., quoting State v. Pepka, 125 Ohio St.3d 124, 2010-Ohio-1045, 926
N.E.2d 611, ¶ 15.
{¶7} The present case involves not the omission of an essential element but rather
the deletion of a superfluous one. Regarding this distinction, Brown’s argument relies
upon the United States Supreme Court’s decision in Ex parte Bain, 121 U.S. 1, 7 S.Ct.
781, 30 L.Ed. 849 (1887). In Bain, the indictment charged that Bain, the cashier and
director of a bank, made false statements “with intent to deceive the Comptroller of the
Currency and the agent appointed to examine the affairs” of the bank. Id. at 4. Before
trial, the court struck the words “the Comptroller of the Currency and,” on the ground that
they were superfluous. The jury found Bain guilty. Id. at 4-5. Bain challenged the
amendment to the indictment in a petition for a writ of habeas corpus. The court held that
the deletion of allegations from the indictment that would not have been necessary to
prove the offense was an unconstitutional amendment that compromised the defendant’s
right to be tried only on a grand jury’s indictment. Id.; United States v. Cotton, 535 U.S.
625, 631, 122 S.Ct. 1781, 152 L.Ed. 2d 860 (2002); United States v. Miller, 471 U.S. 130,
140-145, 105 S.Ct. 1811, 85 L.Ed. 2d 99 (1985).
{¶8} However, the Supreme Court retreated from this particular portion of Bain’s
holding in United States v. Miller, 471 U.S. 130, 140-145, 105 S.Ct. 1811, 85 L.Ed. 2d 99
(1985). The Miller court noted that Bain involved an amendment that deleted from an
indictment allegations that would not have been necessary to prove the offense. Miller
proceeded to overrule that portion of Bain’s holding that such an amendment was
unconstitutional:
To the extent Bain stands for the proposition that it constitutes an
unconstitutional amendment to drop from an indictment those allegations
that are unnecessary to an offense that is clearly contained within it, that
case has simply not survived. To avoid further confusion, we now explicitly
reject that proposition.
Id. at 144.
{¶9} Consistent with Miller and Crim.R. 7(D), we find no error in the trial court’s
amendment of the indictment for the purpose of deleting the superfluous mens rea here.
{¶10} Brown’s first assignment of error is overruled.
II. The Victim’s Age
{¶11} In his second assignment of error, Brown argues that the state failed to
introduce sufficient evidence to establish the age of R.W., the victim in his first count of
trafficking in persons.
{¶12} The state alleged that R.W. was less than 16 years of age at the time of the
offense and was required to prove this fact in order to sustain a conviction for trafficking
in persons in violation of R.C. 2905.32(A)(2)(b).
{¶13} R.W. did not testify at trial. However, the state introduced R.W.’s medical
records during the testimony of a S.A.N.E. nurse who examined R.W. following the
offense. The medical records are replete with references to R.W.’s date of birth, May 3,
1999. As such, the records establish that R.W. was 15 years old on the date of the
offense, to-wit date of offense July 28, 2014. Brown stipulated to R.W.’s medical
records reserving only a confrontation clause objection due to the fact that R.W. failed to
testify at trial.1
{¶14} Brown argues that R.W.’s date of birth contained within the medical records
constitutes inadmissible hearsay. However, his stipulation did not reserve any objection
to the medical records regarding hearsay contained therein and, therefore, his present
hearsay challenge is precluded. Wingfield v. Howe, 8th Dist. Cuyahoga No. 85721,
2006-Ohio-276, ¶ 29, citing Wilson v. LTV Steel Co., Inc., 8th Dist. Cuyahoga No. 59515,
1992 Ohio App. LEXIS 3007 (June 11, 1992); Havens v. Havens, 10th Dist. Franklin No.
11AP-708, 2012-Ohio-2867, ¶ 21.
{¶15} We note that even if Brown had elected to condition his stipulation to
R.W.’s medical records upon a hearsay objection, the S.A.N.E. nurse in this case testified
that she obtained information from the patients as to the nature of their injuries and causes
for medical treatment. The nurse’s gathering and documentation of the victim’s date of
birth would be admissible as a statement made for purposes of medical diagnosis or
treatment under the hearsay exception contained within Evid.R. 803(4).2
{¶16} Brown’s second assignment of error is overruled.
1
Although not directly raised in Brown’s argument, we note that the Ohio Supreme Court has
held that statements made for the purpose of medical diagnosis and treatment are nontestimonial.
State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, 933 N.E.2d 775, ¶ 28, citing State v. Muttart,
116 Ohio St.3d 5, 2007-Ohio-5267, 875 N.E.2d 944, ¶ 63.
2
The victim’s date of birth appears more than 20 times within her medical records from this
incident. One can hardly argue that that level of documentation by medical providers was
accomplished for an investigative purpose rather than for providing appropriate medical treatment.
III. Ineffective Assistance of Counsel
{¶17} In his third assignment of error, Brown argues that his trial counsel failed to
provide effective assistance of counsel by failing to object to the alleged errors addressed
in the first two assignments of error.
{¶18} To prevail on a claim of ineffective assistance of counsel, a defendant must
demonstrate: (1) deficient performance by counsel, i.e., that counsel’s performance fell
below an objective standard of reasonable representation, and (2) that counsel’s errors
prejudiced the defendant, i.e., a reasonable probability that but for counsel’s errors, the
result of the proceeding would have been different. Strickland v. Washington, 466 U.S.
668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio
St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. “Reasonable
probability” is “probability sufficient to undermine confidence in the outcome.”
Strickland at 694.
{¶19} For the reasons addressed in the first two assignments of error we find no
merit to Brown’s ineffective assistance of counsel claim. In addition to the above
arguments, Brown also argues that his trial counsel was ineffective for failing to object to
hearsay testimony regarding R.W.’s age that was introduced during the testimony of one
of the responding police officers. However, Brown was not prejudiced by his counsel’s
failure to object to this testimony because R.W.’s age was established within the
stipulated medical records.
{¶20} Brown’s third assignment of error is overruled.
{¶21} The judgment of the trial court is affirmed.
It is ordered that appellee recover from appellant 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 common
pleas court to carry this judgment into execution. The defendant’s conviction having been
affirmed, any bail pending appeal is terminated. Case remanded to the trial court for the
execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
_______________________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE
TIM McCORMACK, J., and
EILEEN T. GALLAGHER, J., CONCUR