State v. Brown

[Cite as State v. Brown, 2021-Ohio-2540.]

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

STATE OF OHIO C.A. No. 20CA011618

Appellee

v. APPEAL FROM JUDGMENT
ENTERED IN THE
LARRY BROWN COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellant CASE No. 16CR094523

DECISION AND JOURNAL ENTRY

Dated: July 26, 2021

CALLAHAN, Judge.

{¶1} Appellant, Larry Brown, appeals his convictions by the Lorain County Court of

Common Pleas. This Court affirms.

I.

{¶2} On July 14, 2016, after receiving a report that a man may have been shot in a

residence, police officers responded to a home on West 9th Street in Lorain to perform a safety

check. The officers found the body of L.S., who had died as a result of a single gunshot wound

above his left clavicle. L.S.’s brother, S.F., identified Mr. Brown as the shooter. Mr. Brown fled

Ohio and was arrested in Baltimore, Maryland after seeking medical attention for an unrelated

injury. He was charged with two counts of murder in violation of R.C. 2903.02(A) and (B),

respectively; two counts of felonious assault in violation of R.C. 2903.11(A)(1) and (2); and

tampering with evidence in violation of R.C. 2921.12(A)(1). The murder and felonious assault
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charges were accompanied by firearm specifications pursuant to R.C. 2941.145, and the tampering

charge was accompanied by a firearm specification under R.C. 2941.141.

{¶3} Mr. Brown was arraigned on September 29, 2016. On October 7, 2016, Mr. Brown

waived his speedy trial rights in writing on a form journal entry, and the first pretrial conference

was continued. Numerous such forms appear in the record between that time and November 5,

2018, when the State of Ohio moved to schedule a jury trial. Some of the forms were signed by

Mr. Brown; others indicated through counsel that he waived his speedy-trial rights. In response to

the State’s motion, the trial court set a trial date of March 20, 2019. Five days before the trial date,

defense counsel moved to continue the trial, citing counsel’s need for an emergency medical

procedure. The trial court granted the motion and selected August 19, 2019, as the new trial date.

Other pretrial conferences were conducted between counsel in the interim, documented by further

form entries that contain the same language regarding waiver of speedy trial. Two were signed by

Mr. Brown; a third indicated that Mr. Brown waived his speedy trial rights through counsel.

{¶4} On the date of trial, defense counsel moved to withdraw, and Mr. Brown appeared

in court to read a letter addressed to the trial court in which he requested new counsel. The trial

was continued, and on August 20, 2019, the trial court granted the motion to withdraw, finding

that the relationship between counsel and Mr. Brown had deteriorated to a degree “that they [could]

not adequately work together during a trial[,]” and appointed new counsel. The trial court

subsequently continued the trial to January 27, 2020, upon request of the defense. On September

12, 2019, however, the State moved the trial court to recuse from the case, arguing that the trial

court judge had ex parte contact with a potential witness. The trial court granted the motion.

{¶5} On October 15, 2019, the newly appointed defense counsel also moved to

withdraw, citing his own significant health issues. The trial court granted the motion, appointed a
 3

third attorney to represent Mr. Brown, and moved the trial date to January 21, 2020. On December

4, 2019, Mr. Brown filed a motion to dismiss the indictment, alleging that his right to a speedy

trial had been violated. The motion was handwritten and signed by Mr. Brown, but his appointed

counsel cosigned the motion and the proof of service. The trial court denied the motion,

concluding that Mr. Brown had waived his speedy trial rights.

{¶6} A jury found Mr. Brown guilty of all charges and firearm specifications. The trial

court merged the murder and felonious assault convictions with their accompanying firearms

specifications for purposes of sentencing, and the State elected to proceed to sentencing on the

murder conviction under R.C. 2903.02(A). The trial court sentenced Mr. Brown to prison terms

of fifteen years to life for the murder conviction and thirty-six months for the accompanying

firearm specification. The trial court sentenced Mr. Brown to additional twelve-month prison

terms for tampering with evidence and the accompanying firearm specification and ordered each

prison term to be served consecutively for an aggregate prison sentence of twenty years to life.

{¶7} Mr. Brown appealed, asserting six assignments of error. His assignments of error

are rearranged to facilitate discussion.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED IN DENYING MR. BROWN’S MOTION TO
DISMISS IN VIOLATION OF [R.C.] 2945.71 AND [R.C.] 2945.72 AS WELL AS
THE UNITED STATES AND STATE OF OHIO CONSTITUTIONS AS MR.
BROWN’S RIGHT TO A SPEEDY TRIAL WAS VIOLATED.

{¶8} In his first assignment of error, Mr. Brown argues that the trial court erred by

denying his motion to dismiss the indictment because his speedy trial rights had been violated.

Specifically, Mr. Brown argues that he did not knowingly, voluntarily, and intelligently waive his

right to a speedy trial on some of the dates reflected on the form journal entries in the record and
 4

that the delay in his trial was unreasonable under the circumstances. He also appears to argue that

because he was not present for all pretrials, his right to due process was violated.

{¶9} Ohio’s speedy trial statute, R.C. 2945.71, provides that an individual who has been

charged with a felony must be brought to trial within 270 days of arrest. R.C. 2945.71(C)(2).

When a defendant is incarcerated without bail on the pending charge, each day is counted as three

days. R.C. 2945.71(E). The rights described in R.C. 2945.71 are coextensive with constitutional

speedy trial guarantees. State v. King, 70 Ohio St.3d 158, 160 (1994), citing State v. O’Brien, 34

Ohio St.3d 7, 9 (1987). Consequently, “an accused’s express written waiver of his statutory rights

to a speedy trial, made knowingly and voluntarily, also constitutes a waiver of his speedy trial

rights guaranteed by the United States and Ohio Constitutions.” King at 160, citing O’Brien at

paragraph one of the syllabus.

{¶10} A defendant who has waived speedy trial rights “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

at paragraph two of the syllabus. See also State v. Bray, 9th Dist. Lorain No. 03CA008241, 2004-

Ohio-1067, ¶ 8. A waiver of speedy trial rights can be of limited or unlimited duration, but when

a written waiver fails to specify an expiration date, it constitutes an unlimited waiver. Bray at ¶ 8,

citing State v. Kovacek, 9th Dist. Lorain No. 00CA007713, 2001 WL 577664, *4 (May 30, 2001),

citing O’Brien at paragraph two of the syllabus. An unlimited waiver is not effective only until a

defendant’s next scheduled court date. State v. Skorvanek, 9th Dist. Lorain No. 08CA009399,

2009-Ohio-3924, ¶ 18, citing State v. Smith, 9th Dist. Lorain No. 98CA007144, 1999 WL

1260872, *3-4 (Dec. 22, 1999).
 5

{¶11} The foundation of Mr. Brown’s arguments is the assumption that he executed

multiple speedy trial waivers that were each effective only until the next pretrial date. This

proposition is incorrect. On October 7, 2016, Mr. Brown waived his speedy-trial rights in writing

on a form journal entry used by the Lorain County Court of Common Pleas to document pretrial

proceedings. The waiver did not contain a specific time limitation. This Court has considered the

nature of waivers contained on this form on previous occasions, concluding that it operates not as

a waiver from one court date to another, but as an unlimited waiver of speedy trial rights.

Skorvanek at ¶ 17-19; Smith at *1, 3-4. Although Mr. Brown expressed dissatisfaction with the

fact that he had not been present for all of the pretrial proceedings in his case, he did not

demonstrate in support of his motion to dismiss that his unlimited waiver on that occasion was not

knowing, voluntary, and intelligent. Consequently, there is no evidence in the record from which

this Court could reach that conclusion.

{¶12} There is also no evidence from which this Court could conclude that Mr. Brown

formally objected to the delay and demanded a trial. See O’Brien at paragraph two of the syllabus;

Bray at ¶ 8. To the extent that Mr. Brown addresses this matter in his brief, it appears that his

argument is that he was unable to do so because he was represented by counsel, with whom he had

a disagreement. Mr. Brown’s actions in other respects undermine this argument, however: he

wrote a letter to the trial court which he read aloud in court upon his first attorney’s motion to

withdraw, and he authored the motion to dismiss that was ultimately filed. To the extent that he

argues that any formal objection would certainly have been rejected by the trial court as an act of

hybrid representation, that argument is also not well-taken. See, e.g., State v. Baker, 7th Dist.

Mahoning No. 19 MA 0080, 2020-Ohio-7023, ¶ 103, 105, 108-121 (noting that a pro se motion

by a represented defendant who objected to pretrial delay and asserted speedy trial rights was
 6

effective and required consideration of whether the defendant was tried in a reasonable time after

the motion was filed).

{¶13} In addition to his arguments related specifically to speedy trial rights, Mr. Brown’s

first assignment of error appears to assert that he was denied due process because he was not

present for pretrial hearings before his first attorney withdrew. The number of pretrial conferences

at which Mr. Brown was apparently not in attendance is of concern to this Court, particularly given

the fact that the record does not reflect that he waived attendance, through counsel or otherwise.

See State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, ¶ 103, citing State v. Frazier, 115 Ohio

St.3d 139, 2007-Ohio-5048, ¶ 144; Frazier at ¶ 145.1 Nonetheless, the absence of an accused only

results in prejudicial error when it prevents “‘a fair and just hearing.’” Frazier at 139, quoting

Snyder v. Massachusetts, 291 U.S. 97, 107-108 (1934). “[S]peculative claim[s]” are not sufficient

to demonstrate prejudicial error. See, e.g., Hale at ¶ 102 (rejecting a defendant’s argument that his

presence at pretrial conferences would have alerted him to ineffective assistance of trial counsel);

Frazier at ¶ 142 (noting that a defendant’s absence was not prejudicial when the subjects discussed

in chambers were “legal or scheduling issues within the professional competence of counsel.”).

Mr. Brown has not demonstrated that his presence at the pretrials was necessary for a fair and just

hearing.

{¶14} Mr. Brown’s first assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING THE STATE
TO RECALL ITS EXPERT WITNESS TO CHANGE HIS TESTIMONY.

1
This Court also notes that although there appears to be no dispute about whether Mr.
Brown attended any of the pretrial conferences before his first attorney withdrew, the record does
not reflect whether he attended or not. See generally State v. Clark, 38 Ohio St.3d 252, 258 (1988).
 7

{¶15} Mr. Brown’s third assignment of error argues that the trial court abused its

discretion by permitting the State to recall R.W., the custodian of records for T-Mobile, to correct

a misstatement in his testimony. This Court does not agree.

{¶16} Evid.R. 611(A) requires a trial court to “exercise reasonable control over the mode

and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation

and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of

time, and (3) protect witnesses from harassment or undue embarrassment.” The decision to permit

a witness to be recalled falls within the trial court’s discretion under Evid.R. 611, and this Court

reviews that decision for an abuse of discretion. See State v. Jackson, 9th Dist. Lorain No.

14CA010555, 2015-Ohio-2473, ¶ 59, citing State v. Anderson, 191 Ohio App.3d 110, 2010-Ohio-

6234, ¶ 9 (9th Dist.). An abuse of discretion is present when a trial court’s decision “‘is contrary

to law, unreasonable, not supported by evidence, or grossly unsound.’” Menke v. Menke, 9th Dist.

Summit No. 27330, 2015-Ohio-2507, ¶ 8, quoting Tretola v. Tretola, 3d Dist. Logan No. 8-14-24,

2015-Ohio-1999, ¶ 25. A trial court may exercise its discretion to permit the recall of a witness in

order to correct testimony previously given through a mistake or oversight on the part of the

witness. State v. McBride, 5th Dist. Stark No. 2008-CA-00076, 2008-Ohio-5888, ¶ 28-36. See,

e.g., State v. Vielma, 3d Dist. Paulding No. 11-11-03, 2012-Ohio-875, ¶ 29-31 (A trial court did

not abuse its discretion when it permitted the State to recall a witness to clarify testimony regarding

the location of an incident.); State v. Smith, 9th Dist. Lorain No. 89CA004620, 1990 WL 72366,

*1-2 (May 23, 1990) (A trial court did not abuse its discretion by permitting the State to recall a

witness regarding two questions that were overlooked.).

{¶17} As an initial matter, this Court notes that R.W. did not testify as an expert, but as

the custodian of records for T-Mobile. See generally Evid.R. 702. In that capacity, he explained
 8

the meaning of terms referenced on documents produced by T-Mobile and interpreted location

data that was set forth in those documents. During his testimony, he explained the significance of

service codes documented in the cellular phone records of L.S. for the date of his death, which

were introduced by the State as State’s Exhibit AJ. In doing so, R.W. referenced a second

document, which was included in State’s Exhibit AH. That document also provided definitions

for each of the service codes.

{¶18} According to that second document, service code 2A means “Call Forwarding on

No Reply” and service code 29 means “Call Forwarding on Mobile Subscriber Busy.” During his

testimony, R.W. reversed these definitions, explaining that service code 2A is assigned when a

mobile user takes some action to refuse a call, such as swiping to ignore it, while service code 29

is assigned when a call is forwarded to voice mail with no action by the recipient. With respect to

L.S.’s cellular phone records, therefore, R.W. testified that a number of calls to L.S.’s phone were

actively rejected and forwarded to voicemail at a time after L.S. had been shot and his cellular

phone was believed to be unattended in his residence or in police custody.

{¶19} The State realized the error in R.W.’s testimony after he had testified and initiated

contact with R.W. to clarify the meaning of the service codes. Once T-Mobile confirmed that an

error had been made, the State moved to recall R.W. for the purpose of correcting his testimony

on that point. When he was recalled, R.W. explained that he had “inadvertently transposed the

numbers in [his] head and just flip-flopped the explanation.” R.W. also corrected his testimony

regarding the calls that were received by L.S.’s cellular phone during the time period in question.

{¶20} R.W. was recalled not for purposes of addressing his credibility, as Mr. Brown

maintains, but because his previous testimony contained an inadvertent mistake that led to the

misinterpretation of State’s Exhibit AJ and to potential confusion between his testimony and the
 9

reference document contained in State’s Exhibit AH. The State brought the erroneous testimony

to the trial court’s attention as soon as it was confirmed by T-Mobile, and R.W. was recalled before

the State rested its case. Under these circumstances, this Court cannot conclude that the trial court

abused its discretion by permitting the State to recall R.W. Mr. Brown’s third assignment of error

is overruled.

ASSIGNMENT OF ERROR NO. 4

THE VERDICT IN THIS CASE IS AGAINST THE SUFFICIENCY OF THE
EVIDENCE AND SHOULD BE REVERSED BECAUSE IT VIOLATES THE
FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION, AND ARTICLE I, SECTION 10 OF THE
CONSTITUTION OF THE STATE OF OHIO.

{¶21} In his fourth assignment of error, Mr. Brown argues that his convictions are not

based on sufficient evidence. This Court does not agree.

{¶22} “Whether a conviction is supported by sufficient evidence is a question of law that

this Court reviews de novo.” State v. Williams, 9th Dist. Summit No. 24731, 2009-Ohio-6955, ¶

18, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). The relevant inquiry is whether the

prosecution has met its burden of production by presenting sufficient evidence to sustain a

conviction. Thompkins at 390 (Cook, J., concurring). For purposes of a sufficiency analysis, this

Court must view the evidence in the light most favorable to the State. Jackson v. Virginia, 443

U.S. 307, 319 (1979). We do not evaluate credibility, and we make all reasonable inferences in

favor of the State. State v. Jenks, 61 Ohio St.3d 259, 273 (1991). The evidence is sufficient if it

allows the trier of fact to reasonably conclude that the essential elements of the crime were proven

beyond a reasonable doubt. Id.

{¶23} Mr. Brown was convicted of murder in violation of R.C. 2903.02(A) and (B), which

provide:
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(A) No person shall purposely cause the death of another or the unlawful
termination of another’s pregnancy.

(B) No person shall cause the death of another as a proximate result of the
offender’s committing or attempting to commit an offense of violence that is a
felony of the first or second degree and that is not a violation of section 2903.03 or
2903.04 of the Revised Code.

R.C. 2903.02(A) requires that the person causing the death of another act purposely. “A person

acts purposely when it is the person’s specific intention to cause a certain result, or, when the gist

of the offense is a prohibition against conduct of a certain nature, regardless of what the offender

intends to accomplish thereby, it is the offender’s specific intention to engage in conduct of that

nature.” R.C. 2901.22(A).

{¶24} R.C. 2903.02(B), which prohibits felony murder, does not contain a mens rea

component apart from the predicate offense. State v. Owens, 162 Ohio St.3d 596, 2020-Ohio-

4616, ¶ 10, quoting State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, ¶ 43. “While the defendant

must satisfy all the elements of the qualifying predicate offense—including any mens rea element

specific to that criminal act—the felony-murder statute imposes no additional mens rea element

with regard to the victim’s death.” Owens at ¶ 10. The predicate offense in this case was felonious

assault in violation of R.C. 2903.11(A)(1) and (2), which provided, at the time:

(A) No person shall knowingly do either of the following:

(1) Cause serious physical harm to another or to another’s unborn;

(2) Cause or attempt to cause physical harm to another or to another’s unborn by
means of a deadly weapon or dangerous ordnance.

“A person acts knowingly, regardless of purpose, when the person is aware that the person’s

conduct will probably cause a certain result or will probably be of a certain nature.” R.C.

2901.22(B).
 11

{¶25} For purposes of this assignment of error, Mr. Brown does not challenge the

conclusion that he is the person who shot L.S. Instead, Mr. Brown argues that there is insufficient

evidence supporting the conclusion that, with respect to R.C. 2903.02(A), he acted purposely and

that, with respect to R.C. 2903.02(B) and R.C. 2903.11(A)(1) and (2), he acted knowingly. In this

respect, this Court is mindful that “[i]ntent must be demonstrated with reference to the surrounding

facts and circumstances” because

“‘The intent of an accused person dwells in his mind. Not being ascertainable by
the exercise of any or all of the senses, it can never be proved by the direct testimony
of a third person, and it need not be. It must be gathered from the surrounding facts
and circumstances under proper instructions from the court.’”

State v. Hanford, 9th Dist. Summit No. 29204, 2019-Ohio-2987, ¶ 8, quoting In re Washington,

81 Ohio St.3d 337, 340 (1998), quoting State v. Huffman, 131 Ohio St. 27 (1936), paragraph four

of the syllabus.

{¶26} Officer Christian Franco responded to L.S.’s residence for a welfare check in

response to a report of a possible shooting. When he arrived, he found that the duplex was locked

and lights were on. Through an open window, he heard music playing. Concerned that there could

be an injured person inside, Officer Franco called out but received no response. He testified that

he continued around the perimeter of the house to another open window, through which he saw

the legs of an individual protruding from a bathroom doorway. Moving to the bathroom window,

Officer Franco saw more of the body and noted the presence of blood. He testified that he decided

to enter the residence and determined that the best point of entry would be a front window that

could be accessed by removing an air conditioning unit.

{¶27} When he entered the house, Officer Franco noted no signs of struggle or forced

entry. He testified that he moved from the front of the lower unit of the duplex toward the back.

When he reached the back hallway, he saw the legs that he had seen from outside the residence.
 12

Officer Franco testified that when he approached further, he saw L.S.’s body with a single gunshot

wound to the area of his clavicle and a large amount of blood next to the body. He noted no signs

of life and that the shooting did not appear to have “just happen[ed].” Officer Franco testified that

once he located the victim, he returned to the front of the unit, informed a Sergeant that he had

confirmed the presence of a body, secured the unit, and exited. During his testimony, Officer

Franco confirmed the presence of bloody footprints in the unit from the bathroom to the entry area

but testified that he did not step in any blood while in the residence.

{¶28} Detective Brian Denman was assigned to process the crime scene. He testified that

he noted the presence of blood transfer stains on the floor inside the front door, on the carpet

adjacent to the kitchen, and on the kitchen floor. He described what he noticed in the kitchen as

partial footprints and noted that it appeared that someone had stepped in the blood pooled next to

the victim’s left side and walked through the residence. Detective Denman observed that the house

was tidy and bore no indications of a struggle or forced entry. He testified that efforts to locate a

shoe in the house with a tread pattern that matched the bloody footprints proved fruitless.

Detective Denman noted that a 9 mm shell casing was recovered from the bathroom floor near

L.S.’s body, but that police were unable to locate a firearm in the residence. A photograph of the

bathroom where police found L.S.’s body depicts L.S. in a supine position with his head near the

base of the toilet opposite the door. A red baseball cap can be seen on the floor near the toilet

behind L.S.’s body, and a scarf can be seen draped over the toilet itself.

{¶29} Sergeant Dennis Camarillo was the lead investigator of L.S.’s death. He testified

that the crime scene had been secured when he arrived. Sergeant Camarillo recalled that there

were faint indications of blood transfer on the floor at the threshold to the house, in the living

room, and on the carpet between the living room and kitchen threshold. He explained that as he
 13

examined the floor in the kitchen, he noted that the pattern more distinctly resembled the tread of

footwear. Sergeant Camarillo testified that there were also drops of blood present and that the trail

led toward the hallway and bathroom area where L.S.’s body was found: “as you headed that way,

each footprint became a little more defined and with a little higher concentration of blood[.]” Next

to the body, Sergeant Camarillo noted “a significant amount of blood pooled to [L.S.’s] left side,”

which appeared to be the source of the bloody footprints. He also explained that “[b]ecause of *

* * the nature of how they were left behind, it was clear that whoever left those bloody footprints

was in close proximity to [L.S.] after he was shot.”

{¶30} Sergeant Camarillo testified that the pool of blood was notable because “the blood

coming from the wound goes in one direction, over from the front of [L.S.]’s body, chest, upper

shoulder area, towards his back and onto the ground. * * * It all generated * * * from that source,

and * * * it accumulated on the left side of his body.” He also explained the significance of the

location where police recovered the spent shell casing:

[B]ecause it ejected to the right, * * * it was somewhere near - - either just inside
the bathroom or at the threshold. And * * * since it ejects to the right, the firearm
would have been fired, the casing would have ejected to the right, and in some
fashion ended up in that corner where it was located. * * * [I]t indicates to me that
the weapon was fired either right inside the bathroom or the, like the threshold of
the bathroom door to the hallway. Right in that - - right by where [L.S.]’s body
was found.

Sergeant Camarillo explained that his training and experience led him to conclude that L.S. was

shot “right where he was found laying.”

{¶31} Dr. Frank Miller, III, the Lorain County Chief Deputy Coroner, described the

findings of L.S.’s autopsy. He explained that L.S. died as a result of a single gunshot wound

inflicted by a bullet that entered his body just above his clavicle on the left side, travelled toward

the center of his body, and exited the left side of his back around the midline of his body.
 14

According to Dr. Miller, the bullet moved from front to back, from left to right, and “slightly

upward[.]” Along this path, the bullet passed through the upper lobe of L.S.’s left lung, causing

bleeding from the subclavian artery and vein. Dr. Miller explained that L.S.’s left lung would have

filled with blood and that the corresponding blood loss to the brain L.S. experienced would cause

him to lose consciousness within thirty seconds to two minutes and, within four or five minutes,

would cause death.

{¶32} Dr. Miller explained that the single direction of L.S.’s blood flow indicates that he

had been laying on his back, as he was found, and Dr. Miller testified that his injuries were

consistent with being shot by someone standing over him. He also noted that if L.S. had been

moving around after sustaining the gunshot wound, he would have been actively bleeding in large

amounts. He testified that L.S.’s body bore numerous other abrasions and contusions that were

sustained around the time of his death, including bruising between his skull and scalp in the area

where his head rested on the bathroom floor.

{¶33} S.F., L.S.’s younger brother, described the events that took place on the morning of

the shooting. He explained that Mr. Brown was not related to him and L.S. by blood but had a

close relationship with them nonetheless. S.F. recalled that Mr. Brown arrived at the apartment

that S.F. shared with L.S. sometime during the night before the shooting. S.F. was aware that Mr.

Brown always carried a firearm. Early on the morning of July 14, 2016, Mr. Brown awakened

S.F. to go with him to pick up his young son. According to S.F., Mr. Brown wore “[s]ome kind

of long gown, like dashiki like – it’s a type [of] robe-looking thing.” Mr. Brown also wore a scarf

and a hat. When they returned, according to S.F., L.S. was in the kitchen cooking. S.F. testified

that Mr. Brown and L.S. began “talking jive back and forth[]” and “[h]orseplay[ing], like slap

boxing, you know, just throwing punches at each other, just playing.” He explained that “they was
 15

just using their hands, and my brother * * * would use his feet, some of that[,]” and that they did

not make “real hard contact[.]” S.F. testified that Mr. Brown still wore the outfit that he had worn

earlier that morning.

{¶34} After the two disappeared from his sight, S.F. heard the sound of a gunshot from

the area of the hallway between the bathroom and his own bedroom. He recalled that, seconds

later, Mr. Brown came out of the back hall with a look on his face that S.F. described as

“[h]orrified” and “[c]razed, enraged[.]” S.F. testified that Mr. Brown came toward him carrying a

gun that he had seen in Mr. Brown’s possession on previous occasions. Mr. Brown no longer wore

the hat or scarf, which S.F. identified as those found by the police near L.S.’s body in the bathroom.

S.F. explained that he left the apartment with Mr. Brown out of fear that he too would be shot and

that he drove Mr. Brown’s car away from the residence. He testified that once in the car, Mr.

Brown said something along the lines of “‘I had to pop that motherfucker[.]’” The two drove to a

carwash, where S.F. noticed a bloodstain on the robe that Mr. Brown wore. S.F. testified that Mr.

Brown removed the robe, placed it in a plastic bag, and left it in a garbage can. Surveillance video

confirmed that after Mr. Brown discarded the robe, a gun was visible in the area of his waistband.

Surveillance video from a nearby convenience store captured Mr. Brown buying a new shirt and

changing into it. S.F. testified that Mr. Brown eventually entered a bank, where he secured a cash

advance on his credit card. After S.F. entered the bank himself and hid under an employee’s desk,

Mr. Brown fled in his vehicle.

{¶35} These facts and circumstances surrounding the death of L.S.—including his

statements and conduct after the crime was committed—viewed in the light most favorable to the

State and with all inferences resolved in favor of the State, would allow the jury to reasonably

conclude that it was Mr. Brown’s specific intention to cause L.S.’s death by inflicting a single
 16

gunshot wound at close range, either while Mr. Brown was standing at the location where his body

was found or as he lay in that position after sustaining numerous other injuries near the time of his

death. Alternatively, the jury could reasonably conclude that Mr. Brown knowingly inflicted

serious physical harm upon L.S. or caused physical harm by means of a firearm and that his death

resulted.

{¶36} Mr. Brown’s convictions for murder are not based on insufficient evidence. His

fourth assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 5

THE CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE 14TH
AMENDMENT TO THE U.S. CONSTITUTION AND OF THE OHIO
CONSTITUTION.

{¶37} Mr. Brown’s fifth assignment of error argues that his convictions are against the

manifest weight of the evidence. This Court does not agree.

{¶38} When considering whether a conviction is against the manifest weight of the

evidence, this Court must:

review the entire record, weigh the evidence and all reasonable inferences, consider
the credibility of witnesses and determine whether, in resolving conflicts in the
evidence, the trier of fact clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). A reversal on this basis is reserved for

the exceptional case in which the evidence weighs heavily against the conviction. Id., citing State

v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). As with other elements of a crime, “the

credibility of witnesses and their degree of certainty in identifying the defendant are matters

affecting the weight of the evidence.” State v. Flynn, 9th Dist Medina No. 06CA0096-M, 2007-
 17

Ohio-6210, at ¶ 12, citing State v. Gorgan, 9th Dist. Medina No. 1824, 1990 WL 1771, *1 (Jan.

10, 1990).

{¶39} In support of his manifest weight argument, Mr. Brown maintains that S.F. was not

a credible witness, that the physical evidence did not support his convictions, and that the results

of the police investigation were unreliable. Unlike his arguments supporting his fourth assignment

of error, Mr. Brown’s manifest weight argument is based on the proposition that he is not the

person who shot L.S.

{¶40} S.F. described the events before and after L.S. was shot in detail. He testified that

both he and L.S. had a good relationship with Mr. Brown before the events in question. S.F.

recalled that he had not been aware that Mr. Brown would be visiting from his residence in

Kentucky, but that he saw Mr. Brown’s gold Mercedes Benz parked outside when he returned

home early on the morning of July 14, 2016. He testified that it was Mr. Brown’s idea for the two

men to pick up his young son and that L.S. was still asleep when they left to do so. S.F. testified

that he drove the car and Mr. Brown provided directions. According to S.F.’s testimony, they

picked up Mr. Brown’s son at a location on West 20th Street, then drove to a location on South

Broadway to visit a female friend of Mr. Brown’s. There was no answer at the door at that location,

and Mr. Brown testified that they then drove to a highrise apartment building in South Lorain to

visit a man named G.C. Once there, according to S.F., Mr. Brown and his son went upstairs in the

elevator while S.F. waited in the lobby. S.F. testified that after waiting between twenty and thirty

minutes, Mr. Brown returned without his son, and they drove home.

{¶41} According to S.F., L.S. was awake and making food in the kitchen when they

arrived. S.F. testified that L.S. was cooking grits, but during his cross-examination he noted that

it was L.S.’s pattern to cook grits rather than what he observed. S.F. recalled that he was in the
 18

kitchen making peanut butter and jelly sandwiches while L.S. and Mr. Brown were “horse

playing[,]” and it is from there that he heard a gunshot from the area of the back hallway and

bathroom. S.F. testified that Mr. Brown emerged from the hallway with a firearm in his hand that

was pointed in S.F.’s direction. According to S.F.’s testimony, Mr. Brown said, “‘Come on. Let’s

go.’” S.F. explained that he did what Mr. Brown told him to do because he was frightened and “in

a state of shock.” He recalled that Mr. Brown told him to drive the gold Mercedes and that he did

so because he was afraid that he would be shot, although he did not recall whether Mr. Brown still

had the gun out once they started driving.

{¶42} S.F. testified that Mr. Brown told him to drive to a carwash and, once they arrived,

that he noticed a bloodstain of three or four inches in diameter on Mr. Brown’s robe. S.F.

acknowledged that although he knew some people at the carwash, he did not tell them what

happened because he did not have an opportunity. After Mr. Brown changed clothes at the

carwash, the two men walked to a neighboring convenience store. S.F. testified that he did not

flee at that time because he was afraid of being shot, and he explained that he pulled his cellular

phone out because he wanted to call someone for help but ultimately did not do so. S.F. recalled

that he and Mr. Brown walked back to the carwash and got into Mr. Brown’s car again.

{¶43} At this point, Mr. Brown drove, and S.F. rode in the passenger seat. S.F. explained

that, in an effort to escape, he told Mr. Brown that he had to use the bathroom and asked to drive

to his mother’s home. When no one answered the doorbell, S.F. got back in the car. Their next

stop was a gas station in Lorain, where Mr. Brown went inside while S.F. remained in the car alone

about twenty-five feet away. S.F. explained that he did not flee because he “[couldn’t] outrun no

bullet.”
 19

{¶44} S.F. testified that their final stop was a bank branch in Amherst. He recalled that

Mr. Brown first tried to obtain cash from an ATM then entered the bank while S.F. remained in

the car. He testified that he waited until Mr. Brown was talking to a bank teller then entered the

bank and told Mr. Brown that he was going next door to use the bathroom. S.F. explained that he

went to the restroom of a business next door, locked the door, and tried to make a phone call. He

acknowledged that he did not say anything about the situation to employees in the business when

he left the restroom. Noticing that Mr. Brown’s car was no longer parked outside the bank, S.F.

returned, entered the bank, and hid under an employee’s desk. He testified that he asked the

employee to call the police and told her about the shooting. He also recalled that he called his

mother and sister at that time. When interviewed by the police, S.F. identified Mr. Brown as the

individual involved in the shooting with certainty.

{¶45} Mr. Brown argues that S.F.’s testimony cannot be considered credible because he

made statements that were inconsistent with respect to certain details and acknowledged that he

lied during interviews with the police. S.F.’s prior inconsistent statements and admitted falsehoods

were, indeed, acknowledged at trial. The first officer who interviewed S.F. testified that he said

Mr. Brown was covered in blood after the shooting. S.F. testified differently at trial, and he

explained that if he had previously made this statement, it was false. He acknowledged that he

had previously told police that he was outside the house when the shooting occurred and that he

maintained this falsehood until his third interview with police on August 7, 2017. He admitted

that he previously told his mother that he had crawled through the sunroof of Mr. Brown’s car to

escape when, in fact, he had tried to do so unsuccessfully. During his cross-examination, S.F.

acknowledged that he omitted several details during his testimony—namely, that after leaving the

carwash, he and Mr. Brown walked to a Family Dollar before going to the convenience store
 20

because Mr. Brown wanted to find an ATM and, after they left the convenience store, that the two

men rode with a third party to his house, where they sat on the porch talking. S.F. acknowledged

that there were no items visible in photographs of the kitchen that were consistent with making

peanut butter and jelly sandwiches. S.F. denied that he knew a former upstairs neighbor, T.W.,

although she testified that she knew and had done drugs with S.F. According to T.W.’s testimony,

S.F. provided her with three different stories about how the shooting took place.

{¶46} Sergeant Camarillo confirmed discrepancies in S.F.’s prior statements.

Inconsistencies notwithstanding, however, the testimony of other witnesses confirmed S.F.’s

testimony to a significant degree. One of S.F. and L.S.’s neighbors testified that she had seen a

gold vehicle parked at their house on the morning of July 14th and that she later saw a man she

did not recognize wearing a robe that was white with green stripes. She identified Mr. Brown as

the person she saw that morning. Another neighbor provided the police with security video footage

that confirmed this testimony and S.F.’s timeline of events from early that morning. Cellular

telephone tower data from Mr. Brown’s cellular phone was generally consistent with the timeline

of the day’s events provided by S.F., and surveillance video obtained from the carwash,

convenience store, and bank confirmed details in S.F.’s testimony. As Sergeant Camarillo

observed, cellular phone extraction data was consistent with S.F.’s testimony regarding the calls

that he attempted to place after the shooting.

{¶47} Other witnesses confirmed S.F.’s version of the events that happened once he

entered the bank where Mr. Brown obtained a cash advance. T.G., a bank employee, testified that

on the date in question, a man who appeared to be “extremely frightened, anxious, [and] in a hurry”

entered the bank and hid under the desk in an office. T.G. recalled that the man said “he was

kidnapped, there was a murder, to call the police.” T.D., a former sergeant with the Amherst Police
 21

Department, responded to the bank. He testified that he found a “very distraught” male who “was

in a very excited state” and “obviously had been involved in some type of situation where his

nerves were damaged.” T.D. explained that the man, whom he identified as S.F., told him that Mr.

Brown had been involved in a shooting at S.F.’s residence. According to T.D., S.F. provided him

with the address where the shooting occurred, the identity of the shooter, and the make and model

of Mr. Brown’s vehicle.

{¶48} This Court must “‘consider[] the credibility of witnesses’” as part of our manifest

weight review. Thompkins, 78 Ohio St.3d at 387, quoting Martin, 20 Ohio App.3d at 175.

Nonetheless, this Court is mindful of the well-established principle that a trier of fact enjoys the

best position to assess the credibility of witnesses. State v. Rivera, 9th Dist. Lorain No.

18CA011263, 2019-Ohio-62, ¶ 39, quoting State v. Johnson, 9th Dist. Summit No. 25161, 2010-

Ohio-3296, ¶ 15. Although S.F.’s testimony was inconsistent with his prior statements in some

respects, this Court cannot conclude, as Mr. Brown suggests, that it must be disregarded entirely.

{¶49} Mr. Brown also argues that his convictions are against the manifest weight of the

evidence because Sergeant Camarillo testified that the tread pattern on Mr. Brown’s shoes did not

match the bloody footprints at the scene. This fact is of limited value, however, because Sergeant

Camarillo’s testimony in this respect was qualified. Sergeant Camarillo testified that he submitted

still-frame images from surveillance videos that captured the shoes that Mr. Brown was wearing

after the fact to the FBI in the hope that they could provide useful information. The State stipulated

“that the FBI could not make a match to the tread pattern[.]” Based on this stipulation, the defense

did not move to admit the FBI report into evidence or obtain the testimony of the individual who

performed the analysis. Consequently, there is no evidence in the record that would explain the

meaning of this conclusion. In addition, the officers who processed the crime scene did not locate
 22

any shoes in the apartment that matched the tread pattern present in the footprints, and the shoes

that Mr. Brown wore at the time of the shooting were never recovered. There is no evidence in

the record that tends to establish that the shoes that Mr. Brown wore in the photographs taken after

the murder are the same shoes that he wore at the time—a fact that is especially significant given

that other evidence demonstrates at least two occasions on which Mr. Brown changed into new

clothing and discarded the old.

{¶50} Mr. Brown’s final argument is that his conviction is against the manifest weight of

the evidence because the results of the police investigation are not worthy of confidence.

Specifically, Mr. Brown argues that the police did not gather latent fingerprints or touch DNA

evidence or inspect certain exterior areas surrounding the property, including garbage cans,

vehicles, and the backyards of neighbors. The investigating officers, however, described the scope

of their investigation and explained why it was appropriate under the circumstances. Compare

State v. Dumas, 9th Dist. Medina No. 20CA0029-M, 2021-Ohio-1534, ¶ 32. Moreover, there is

no requirement that a conviction be supported by the introduction of scientific evidence. See State

v. Tyus, 9th Dist. Summit No. 29520, 2020-Ohio-4455, ¶ 56, citing State v. Finley, 2d Dist.

Montgomery No. 19654, 2004-Ohio-661, ¶ 31-36.

{¶51} Given the evidence at trial, we cannot conclude that this is the exceptional case in

which the evidence weighs heavily against the conviction. See Otten, 33 Ohio App.3d at 340,

citing Martin, 20 Ohio App.3d at 175. Mr. Brown’s fifth assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ERRED WHEN IT FAILED TO PROPERLY INSTRUCT
THE JURY OF THE LESSER INCLUDED OFFENSE OF RECKLESS
HOMICIDE AND NEGLIGENT HOMICIDE, FOR COUNTS ONE AND TWO,
MURDER AND THE LESSER INCLUDED OFFENSE OF ASSAULT AND
NEGLIGENT ASSAULT, FOR COUNTS THREE AND FOUR, FELONIOUS
ASSAULT.
 23

{¶52} Mr. Brown’s second assignment of error argues that the trial court erred by failing

to instruct the jury on lesser included offenses because the evidence does not demonstrate that Mr.

Brown acted purposely or knowingly. This Court does not agree.

{¶53} When determining whether one offense is a lesser included offense of another,

courts must consider “whether one offense carries a greater penalty than the other, whether some

element of the greater offense is not required to prove commission of the lesser offense, and

whether the greater offense as statutorily defined cannot be committed without the lesser offense

as statutorily defined also being committed.” State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-

2974, paragraph two of the syllabus. In doing so, courts must compare the elements of each crime,

and “[a]n offense that includes an element that another offense lacks cannot be a lesser included

offense of that other offense.” Owens, 162 Ohio St.3d 596, 2020-Ohio-4616, at ¶ 8.

{¶54} With respect to Mr. Brown’s conviction for felony murder predicated on felonious

assault, his argument that he was entitled to a jury instruction for reckless homicide fails under this

analysis. Id. at ¶ 9-12. Because the felony murder statute imposes no additional mens rea apart

from that required for the underlying offense, “reckless homicide[,]” which is the lesser offense,

“has an element that felony murder lacks—recklessness with regard to the death of the victim.”

Id. at ¶ 10-12. Mr. Brown’s argument regarding negligent homicide and felony murder fails for

the same reason. R.C. 2903.05, which prohibits negligent homicide, requires negligence with

regard to the death of the victim. Consequently, negligent homicide—the lesser offense—contains

an element that felony murder lacks. Compare Owens at ¶ 11-12.

{¶55} Mr. Brown also argues that the trial court erred by failing to instruct the jury on

negligent and reckless homicide, with respect to his conviction for murder in violation of R.C.

2903.02(A), and negligent assault, with respect to the predicate offenses of felonious assault.
 24

“Negligent homicide is not a lesser included offense of murder.” State v. Koss, 49 Ohio St.3d 213

(1990), paragraph four of the syllabus. Reckless homicide, however, is a lesser included offense

of murder in violation of R.C. 2903.02(A). State v. Ivery, 9th Dist. Summit No. 28551, 2020-

Ohio-3349, ¶ 8, 30. Negligent assault is also a lesser included offense of felonious assault. State

v. Robinson-Bey, 9th Dist. Summit No. 28740, 2018-Ohio-5224, ¶ 46.

{¶56} A jury instruction on a lesser included offense, however, is required only when the

evidence presented at trial “would reasonably support both an acquittal on the crime charged and

a conviction upon the lesser included offense.” (Emphasis added.) State v. Thomas, 40 Ohio St.3d

213 (1988), paragraph two of the syllabus. In making this determination, courts must view the

evidence in the light most favorable to the defendant. State v. Monroe, 105 Ohio St.3d 384, 2005-

Ohio-2282, ¶ 37, citing State v. Campbell, 69 Ohio St.3d 38, 47-48 (1994). Mr. Brown’s

arguments are focused on the mens rea necessary to establish the offenses of which he was

convicted. Consequently, he argues that the evidence at trial would reasonably support an acquittal

on the murder and felonious assault charges because it does not demonstrate that he acted

purposefully, with respect to murder, or knowingly, with respect to felonious assault.

{¶57} In support of his arguments, Mr. Brown points to S.F.’s testimony that Mr. Brown

and L.S. enjoyed a good relationship, that they were engaged in horseplay prior to the shooting,

and that he did not witness the shooting itself. As discussed in connection with Mr. Brown’s fourth

assignment of error, however, the trial record is replete with evidence tending to demonstrate that

Mr. Brown acted purposefully or knowingly. Even viewing the evidence at trial in the light most

favorable to Mr. Brown, this Court cannot conclude that Mr. Brown could reasonably have been

acquitted of murder or felonious assault. Because a jury instruction on a lesser included offense

is only required when the evidence presented at trial “would reasonably support both an acquittal
 25

on the crime charged and a conviction upon the lesser included offense[,]” Mr. Brown’s arguments

fail on that basis. (Emphasis added.) Thomas at paragraph two of the syllabus.

{¶58} Mr. Brown’s second assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 6

MR. BROWN DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL
AS GUARANTEED BY THE SIXTH AMENDMENT.

{¶59} In his sixth assignment of error, Mr. Brown argues that he received ineffective

assistance of counsel in the trial court. Specifically, Mr. Brown attributes the delay in bringing his

case to trial to the actions of counsel and argues that the delay deprived him of a fair trial. This

Court does not agree.

{¶60} In order to demonstrate ineffective assistance of counsel, a defendant must show

(1) deficiency in the performance of counsel “so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment” and (2) that the errors made by

counsel were “so serious as to deprive the defendant of a fair trial[.]” Strickland v. Washington,

466 U.S. 668, 687 (1984). A defendant must demonstrate prejudice by showing that, but for

counsel’s errors, there is a reasonable possibility that the outcome of the trial would have been

different. Id. at 694. “A defendant’s failure to satisfy one prong of the Strickland test negates a

court’s need to consider the other.” State v. Madrigal, 87 Ohio St.3d 378, 389 (2000), citing

Strickland at 697.

{¶61} As discussed in this Court’s disposition of his first assignment of error, Mr. Brown

expressly waived his right to a speedy trial in writing and did not file a formal objection and

demand for trial. See generally King, 70 Ohio St.3d at 160, citing O’Brien, 34 Ohio St.3d at

paragraph one of the syllabus; Bray, 2004-Ohio-1067, at ¶ 8. The record does not demonstrate a

deficiency in the performance of counsel in this regard. See generally Madrigal at 390-391 (noting
 26

that in a direct appeal, ineffective assistance of counsel must be demonstrated by evidence within

the record).

{¶62} Even if the pretrial delay could be attributed to deficient performance on the part of

trial counsel, this Court could not conclude that the record demonstrates that Mr. Brown was

prejudiced. Mr. Brown suggests that witnesses at trial must necessarily have suffered from lapses

in memory over time and, consequently, that the result of his trial would have been different had

he been brought to trial sooner. In support of this argument, he points to the testimony of a single

witness regarding a single issue: during his cross-examination, Sergeant Camarillo testified that

he submitted images of Mr. Brown’s shoes to the FBI in the hopes of obtaining a match for the

tread pattern, but Sergeant Camarillo did not at first recall that he had received a report from the

FBI. As discussed in connection with Mr. Brown’s fifth assignment of error regarding manifest

weight, however, Sergeant Camarillo’s testimony regarding the tread evidence was of limited

value to the defense regardless.

{¶63} Mr. Brown’s suggestion that this Court can extrapolate from this single facet of

Sergeant Camarillo’s testimony that his entire trial was tainted by faded memories is also not

persuasive. Prejudice owing to ineffective assistance of counsel cannot be demonstrated by means

of conjecture or speculation. Compare State v. McQuistan, 9th Dist. Medina No. 18CA0104-M,

2019-Ohio-3612, ¶ 25 (considering a speculative prejudice argument in the context of a petition

for postconviction relief). There are difficulties inherent in proving prejudice as a result of fading

memory over time. See generally State v. Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, ¶ 19-29

(discussing proof of “actual prejudice” in the context of preindictment delay). In this case, the

testimony at trial was both extensive and detailed, and the exhibits were exhaustive.
 27

{¶64} Mr. Brown’s final argument regarding prejudice is that trial counsel, who was Mr.

Brown’s third attorney, must necessarily have lacked time to prepare. He maintains that after his

first attorney withdrew, his second attorney withdrew because he did not have time to prepare.

These representations, however, are inconsistent with the record. Mr. Brown’s second attorney

withdrew not because there was insufficient time to prepare for trial, but because he had

unexpected medical problems that prevented him from trying the case. His third attorney assured

the trial court that he could be adequately prepared for trial, and there is nothing in the record to

the contrary. Accordingly, the record does not indicate that the result of Mr. Brown’s trial would

have been different absent the delay that occurred.

{¶65} Mr. Brown’s sixth assignment of error is overruled.

III.

{¶66} Mr. Brown’s assignments of error are overruled. The judgment of the Lorain

County Court of Common Pleas is affirmed.

Judgment affirmed.

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
 28

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.

LYNNE S. CALLAHAN
FOR THE COURT

HENSAL, P. J.
TEODOSIO, J.
CONCUR.

APPEARANCES:

GIOVANNA V. BREMKE, Attorney at Law, for Appellant.

J. D. TOMLINSON, Prosecuting Attorney, and BRIAN P. MURPHY, Assistant Prosecuting
Attorney, for Appellee.