[Cite as State v. Brown,
2024-Ohio-792.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY
STATE OF OHIO, CASE NO. 2023-T-0064
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
FELIX O. BROWN, JR.,
Trial Court No. 1995 CR 00127
Defendant-Appellant.
OPINION
Decided: March 4, 2024
Judgment: Affirmed
Dennis Watkins, Trumbull County Prosecutor, and Ryan J. Sanders, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).
Felix O. Brown, Jr., pro se, PID# A312-676, Grafton Correctional Institution, 2500 Avon
Belden Road, Grafton, OH 44044 (Defendant-Appellant).
EUGENE A. LUCCI, P.J.
{¶1} Appellant, Felix O. Brown, Jr., appeals the judgment of the Trumbull County
Court of Common Pleas, denying his Motion for Leave to File a Motion for New Trial. We
affirm.
{¶2} In 1995, a jury found appellant guilty of murder, in violation of R.C. 2903.02,
with a firearm specification under R.C. 2941.145, and having weapons while under
disability, in violation of R.C. 2923.13. Appellant was sentenced to an aggregate sentence
of 18 years to life. Appellant appealed his conviction which was upheld by this court
in State v. Brown, 11th Dist. Trumbull Nos. 95-T-5349, 98-T-0061, 2000 WL 522339 (Mar.
31, 2000) (“Brown I”). The Supreme Court of Ohio later denied appellant’s jurisdictional
appeal. State v. Brown,
89 Ohio St.3d 1455,
731 N.E.2d 1141 (2000).
{¶3} Nearly 15 years after his conviction, in September 2011, appellant filed a
hybrid Civ.R. 60(B)/Crim.R. 47 motion alleging a misnomer in his indictment and an error
in jury instructions. The trial court overruled the motion, and this court affirmed the denial
based upon the doctrine of res judicata. State v. Brown, 11th Dist. Trumbull No. 2011-T-
0101, 2012-Ohio-4465 (“Brown II”).
{¶4} In August 2016, appellant filed a second Crim.R. 47 motion to “vacate void
judgment” in the trial court alleging the court erred by failing to instruct the jury on lesser-
included offenses and on the defense of accident. The trial court denied the motion and
this court affirmed. See State v. Brown, 11th Dist. Trumbull No. 2016-T-0105, 2017-Ohio-
4241 (“Brown III”).
{¶5} In December 2022, appellant filed the underlying Motion for Leave to File a
Motion for New Trial, as well as an accompanying affidavit in support of his motion. The
state filed a response seeking a dismissal of the motion. Appellant’s motion was denied
on August 24, 2023. This appeal follows.
{¶6} Appellant assigns seven facially, but not entirely substantively redundant
errors for this court’s review. Because they are interrelated, we shall address them
together. They provide:
[1.] The trial court erred as a matter of law in overruling
appellant’s motion for leave: to the prejudice of appellant.
[2.] The trial court erred in overruling appellant’s motion for
leave: to the prejudice of appellant.
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[3.] The trial court erred in overruling appellant’s motion for
leave: to the prejudice of appellant.
[4.] The trial court erred as a matter of law and abused its
discretion in overruling appellant’s motion for leave: to the
prejudice of appellant.
[5.] The trial court erred as a matter of law in overruling
appellant’s motion for leave: to the prejudice of appellant.
[6.] The trial court erred as a matter of law in overruling
appellant’s motion for leave: to the prejudice of appellant.
[7.] The trial court erred as a matter of law and abused its
discretion in overruling appellant’s motion for leave: to the
prejudice of appellant.”
{¶7} Crim.R. 33(B) provides, in relevant part, that “[m]otions for new trial on
account of newly discovered evidence shall be filed within one hundred twenty days after
the day upon which the verdict was rendered …. If it is made to appear by clear and
convincing proof that the defendant was unavoidably prevented from the discovery of the
evidence upon which he must rely, such motion shall be filed within seven days from an
order of the court finding that he was unavoidably prevented from discovering the
evidence within the one hundred twenty day period.”
{¶8} This court has observed that “‘Crim.R. 33 permits a convicted defendant to
file a motion for a new trial within 120 days after the day of the verdict on grounds of
“newly discovered evidence.” However, … when a motion based on newly discovered
evidence is filed more than 120 days after the verdict, the defendant must first file a motion
to seek leave to file a delayed motion.’” State v. ONeil, 11th Dist. Portage No. 2022-P-
0030, 2023-Ohio-1089, ¶ 21, quoting State v. Alexander, 11th Dist. Trumbull No. 2011-
T-0120,
2012-Ohio-4468, ¶ 14. “If [the trial court] determines that the documents in
support of the motion on their face do not demonstrate that the movant was unavoidably
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prevented from discovering the evidence, it may … overrule the motion [for leave] ….”
State v. Trimble, 2015-Ohio-942,
30 N.E.3d 222, ¶ 16 (11th Dist.).
{¶9} One is “unavoidably prevented” from filing a motion for new trial if he or she
“‘“had no knowledge of the existence of the ground supporting the motion and could not
have learned of that existence within the time prescribed for filing the motion in the
exercise of reasonable diligence.”’” ONeil at ¶ 21, quoting Alexander at ¶ 17,
quoting State v. Walden, 19 Ohio App.3d 141, 145-146,
483 N.E.2d 859 (10th Dist.1984).
There is meaningful difference between being “unaware” of information and being
“unavoidably prevented” from obtaining that information. ONiel at ¶ 26.
{¶10} “Clear and convincing evidence is that measure or degree of proof which
is more than a mere ‘preponderance of the evidence,’ but not to the extent of such
certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will
produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to
be established.” Cross v. Ledford, 161 Ohio St. 469,
120 N.E.2d 118 (1954), paragraph
three of the syllabus.
{¶11} In support of his motion for leave, appellant attached four affidavits: his
personal affidavit; an affidavit from Private Investigator Tom Pavlish; an affidavit from
Juror Cathy Brunstetter; and an affidavit from Juror Adriane Perretti.
{¶12} Under his first assignment of error, appellant argues that the trial court
misapplied the law regarding the affidavit submitted by Juror Perretti who sat on his trial.
The juror averred that a person entered the jury room during deliberations to see how
deliberations were going; the person allegedly indicated that the jury needed to continue
deliberating until they reached a decision. Appellant asserted, without substantiation, the
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individual described in the affidavit was a court official. Appellant claims the trial court
failed to give proper weight to the juror’s affidavit. In appellant’s view, this interruption in
deliberation occurred in violation of R.C. 2945.33, which requires the jury to be under the
charge of an officer and that officer shall not allow communications to the jury nor shall
he or she make communications to the jury except to ask if the jury has agreed on a
verdict.
{¶13} The trial court determined that the foregoing argument lacked merit because
appellant failed to demonstrate, by clear and convincing evidence, that he was
unavoidably prevented from obtaining the evidence. We agree with the trial court.
{¶14} Misconduct of a court officer in communicating to the jury, in violation of
R.C. 2945.33, during its deliberations “will be presumed to be prejudicial to a defendant
against whom, after such communication, a verdict is returned by such jury.” State v.
Adams, 141 Ohio St. 423, 430-431,
48 N.E.2d 861 (1943), paragraph three of the
syllabus. Hence, as a general rule, a court officer’s communication with the jury in the
defendant’s absence may be grounds for a new trial. State v. Abrams,
39 Ohio St.2d 53,
55-56,
313 N.E.2d 823 (1974); Bostic v. Connor,
37 Ohio St.3d 144, 149,
524 N.E.2d 881
(1988) (superseded by statute on other grounds). The presumption of prejudice, however,
is not conclusive. Rather, the burden shifts and “‘rests heavily upon the Government to
establish, after notice to and hearing of the defendant, that such contact with the juror
was harmless to the defendant.’” State v. Murphy,
65 Ohio St.3d 554, 575,
605 N.E.2d
884 (1992), quoting Remmer v. United States,
347 U.S. 227, 229,
745 S.Ct. 450,
98 L.Ed.
654 (1954).
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{¶15} Initially, Juror Perretti did not aver that the alleged individual entering the
jury-deliberation room was a court officer. In fact, she averred she did not recall “the
identity, sex, or role of this person.” Appellant accordingly assumes, without supportive
evidence, that the individual was a court officer. This is problematic because without an
averment that the individual was a member of court personnel, it is unclear what, if any
impact the statements made by the individual would have had on the jury’s deliberations.
{¶16} One obvious, if not the primary, bane R.C. 2945.33 is designed to avoid is
contaminating the jury’s deliberations. If an individual, who appears to be operating under
the cloak of the court’s authority, interrupts deliberations and provides improper direction
to the jury outside of the court’s, the defendant’s, as well as defense counsel’s presence,
a defendant’s due process right to a fair trial is presumed to be compromised. Because,
however, appellant did not establish the individual at issue was a court officer or
employee, it is not clear that the presumption of prejudice would necessarily attach.
{¶17} Even assuming this point is insufficient to fully undermine appellant’s
argument, appellant failed to aver or set forth any material facts that he was unavoidably
prevented from obtaining the information elicited from Juror Perretti’s affidavit. To
establish eligibility to obtain leave to file, a party must establish a firm belief or conviction
in the facts sought to be established. Appellant concedes he retained Private Investigator
Tom Pavlish on October 23, 2021, some 16 years after his conviction. The information
could have reasonably been obtained by appellant prior to the expiration of the 120 days
set forth in Crim.R. 33 with the exercise of reasonable diligence. Appellant’s argument
therefore lacks merit.
{¶18} Appellant’s first assignment of error lacks merit.
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{¶19} We shall next address appellant’s third and fourth assigned errors. Under
his third and fourth assignments of error, appellant asserts the trial court erroneously
concluded that he did not offer clear and convincing evidence that he was unavoidably
prevented from obtaining the jurors’ affidavits. Specifically, appellant claims that
because, in his motion for leave, he stated he had been unavoidably prevented from
obtaining the evidence, the trial court erred in drawing a contrary conclusion. We do not
agree.
{¶20} Appellant neither avers nor offers a compelling basis regarding why the
evidence could not have been discovered with reasonable diligence. There is nothing to
indicate that appellant undertook any efforts to discover the evidence prior to October
2021, when the private investigator who interviewed the jurors was hired. Although
appellant may have been unaware of the information resulting from the investigator’s
interviews, it does not follow he was unavoidably prevented from discovering the evidence
within 120 days of the verdict. Accordingly, the trial court properly concluded appellant
had offered “no evidence, much less clear and convincing proof, of any efforts made to
obtain information from jurors in the 120-day period after the verdict.”
{¶21} Appellant’s third and fourth assignments of error are without merit.
{¶22} Under his second assignment of error, appellant argues the trial court erred
in determining the “Allen charge” jury instruction and the communication set forth in Juror
Perretti’s affidavit were one in the same. Our review of the trial court’s judgment does not
support appellant’s assertion.
{¶23} The trial court determined that the so-called “Allen charge,” which relates to
a United States Supreme Court case addressing the propriety of an instruction to a dead-
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locked jury and which is disfavored in Ohio jurisprudence, see State v. Howard, 42 Ohio
St.3d 18,
537 N.E.2d 188 (1989), was addressed and its content was approved in
appellant’s direct appeal. See Brown I,
2000 WL 522339. *4-5. The trial court’s
observation is accurate. Although appellant appears to argue the communication
identified in Juror Perretti’s affidavit was an illegitimate “Allen charge,” his argument must
fail for the same reasons discussed in his previous argument. To wit, appellant failed to
establish the communication was made by a court officer, and he did not establish by
clear and convincing evidence that he was unavoidably prevented from discovering the
same within the timeframe established by rule.
{¶24} Appellant’s second assignment of error lacks merit.
{¶25} Under his fifth, sixth, and seventh assignments of error, appellant claims
the trial court erred in denying him leave to file his motion for new trial based upon Juror
Cathy Brunstetter’s affidavit. In her affidavit, Juror Brunstetter averred she “recall[ed] Dr.
William Cox testifying that Mr. Brown put the weapon against [the victim’s] head and
intentionally pulled the trigger. I recall Dr. Cox testifying that Mr. Brown pushed the gun
into her head.” Appellant maintains, however, this aspect of the trial testimony was
omitted from the trial transcript. He therefore maintains he was denied due process
because, on appeal, the trial transcript was incomplete. We disagree.
{¶26} Appellant mistakenly claims that that Juror Brunstetter’s averments
indicate the trial transcript was altered. The content of the affidavit, however, merely
indicates the juror’s recollection of some of the substantive content of one expert witness.
While irregularities in the transcript were at issue in this case, these points were raised
on appellant’s direct appeal and resolved by this court in Brown I. Id.,2000 WL 522339,
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at *10-11. Accordingly, the due process issue identified by appellant is barred by the
doctrine of res judicata.
{¶27} Moreover, appellant claims that the trial court erred in concluding
appellant did not establish he was unavoidably prevented from obtaining the evidence
contained in Juror Brunstetter’s affidavit. Appellant underscores that he had “absolutely
no idea and no reason to believe” and was therefore “unaware” of the facts averred in the
affidavit. Nevertheless, for the reasons set forth under our analysis of appellant’s first,
third, and fourth assignments of error above, this argument lacks merit.
{¶28} Appellant’s fifth, sixth, and seventh assignments of error are without merit.
{¶29} For the reasons discussed in this opinion, the judgment of the Trumbull
County Court of Common Pleas is affirmed.
MATT LYNCH, J.,
ROBERT J. PATTON, J.,
concur.
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