[Cite as State v. Brown,
2025-Ohio-500.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2024-03-019
: OPINION
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:
BRYAN J. BROWN, :
Appellant. :
CRIMINAL APPEAL FROM CLERMONT COUNTY MUNICIPAL COURT
Case No. 2023 CRB 4087A; 2023 CRB 4087B
Mark J. Tekulve, Clermont County Prosecuting Attorney, and Nicholas A. Horton,
Assistant Prosecuting Attorney, for appellee.
Garrett Law Offices, and Dawn S. Garrett, for appellant.
M. POWELL, J.
{¶ 1} Appellant, Bryan Brown, appeals his conviction in the Clermont County
Municipal Court for violating a protection order and resisting arrest. For the reasons
detailed below, we affirm the judgment of the trial court.
Clermont CA2024-03-019
Factual Background
{¶ 2} On December 20, 2023, Sergeant Cody Collier and Officer Kyle Houk with
the Goshen Township Police Department were dispatched to 7162 Goshen Road on a
disorderly conduct complaint. When they arrived, the officers spoke to the home's
resident, Carol Mason, who advised that she was having problems with Brown, her 41-
year-old grandson who lived in the basement. According to Mason, Brown was acting
erratically and needed mental health care. She explained that he was simply "tearing the
place up."
{¶ 3} Mason informed the officers that she obtained a protection order against
Brown earlier in the day and wanted him to leave. Sergeant Collier confirmed that the
protection order had issued, but believed it needed to be served upon Brown to force his
removal. Accordingly, he reached out to the Clermont County Sheriff's Department to
arrange for a deputy to perfect service of the order.
{¶ 4} During this time, Sergeant Collier waited in and around the residence with
Mason while Brown could be heard screaming and yelling in the basement. A short while
later, Brown came up from the basement in an aggressive and highly agitated manner.
However, he quickly retreated when he saw the officers standing in the living room.
Brown went back down the basement steps and shouted profanities at Sergeant Collier.
Brown told Sergeant Collier that he needed to "get the fuck out of here" and threatened
to knock him out. Sergeant Collier informed Brown that there was a protection order
against him and that he was soon going to be served with the papers requiring him to
immediately vacate the premises.
{¶ 5} About 40 minutes after Sergeant Collier first responded to the home, Deputy
Jason Daniels arrived to serve the protection order on Brown. Sergeant Collier and
Deputy Daniels went down to the basement where Deputy Daniels read the protection
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order to Brown and then provided him a copy. Sergeant Collier informed Brown that he
had to leave but would allow him a few minutes to gather his belongings. Sergeant Collier
warned, however, that if Brown refused, he would be placed under arrest.
{¶ 6} Despite repeated warnings, Brown refused to leave. Ultimately, Sergeant
Collier advised Brown that he was under arrest. Brown refused to cooperate, and a brief
physical struggle ensued. Sergeant Collier, Officer Houk, and Deputy Daniels were
eventually able to subdue Brown and place him under arrest. In the process, Brown
knocked Officer Houk's glasses off his face, breaking them.
Legal Proceedings
{¶ 7} The next day Sergeant Collier filed two complaints against Brown for
violating a protection order in violation of R.C. 2919.27(A)(1), a first-degree misdemeanor,
and resisting arrest in violation of R.C. 2921.33(A), a second-degree misdemeanor.
Brown pled not guilty and was appointed a public defender.
{¶ 8} On January 11, 2024, Brown's public defender filed a plea of not guilty by
reason of insanity and requested a continuance to have a competency evaluation. That
same day, the parties appeared for a hearing before the trial court. When Brown heard
his public defender confirm that he was seeking a competency evaluation, Brown
interjected stating "[h]e's fired. I've already did this. Went through it last year." The trial
court then granted the continuance to allow for a competency evaluation, noting that any
other matters could be addressed later.
{¶ 9} Brown was assessed by Dr. Davis with the Southern Ohio Forensic
Evaluations Services, who prepared a report stating that Brown was competent to stand
trial and did not meet the criteria for the not guilty by reason of insanity plea. The parties
appeared for another hearing where Brown's public defender stipulated to the contents of
the report. The trial court then found Brown competent to stand trial, and the case was
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set for a bench trial.
{¶ 10} On March 4, 2024, the parties appeared for a bench trial at which time
Brown told the court that he thought "Owen" was going to be his attorney. Brown implied
that he was unhappy with his public defender because the public defender advised him
that the case "doesn't look good" and that Brown should enter into a plea agreement. The
trial court advised Brown that his public defender was his attorney, and the proceedings
were going to go forward.
{¶ 11} Sergeant Collier was the only witness called during the bench trial. He
testified about the events of December 20, including that he informed Brown about the
protection order and the need to vacate the residence. Sergeant Collier also testified that
Deputy Daniels served Brown with the protection order, but Brown refused to leave and
then resisted arrest. In addition, the state introduced a recording taken from Sergeant
Collier's body cam and a copy of the protection order. The recording from the body cam
captured the incident, including where Deputy Daniels served the protection order on
Brown and read it to him. Following the close of evidence, the trial court found Brown
guilty as charged.
{¶ 12} During the sentencing hearing, the state informed the trial court that Brown
had prior convictions for assault, failure to comply, disorderly conduct, attempted
trafficking in drugs, and aggravated menacing. Brown disputed some of the prosecutor's
statements regarding his criminal history. The trial court then conducted its own inquiry
into Brown's local criminal history and advised that it would only consider Brown's local
convictions for assault, failure to comply, and misuse of the 911 system in rendering its
sentencing decision. Thereafter, the trial court sentenced Brown to 30 days in jail for
resisting arrest and 120 days in jail for violating the protection order. The terms were
ordered to be served consecutively. Brown now appeals, raising four assignments of
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error for review. For ease of discussion, we will address Brown's assignments of error
out of order.
Appeal
{¶ 13} Assignment of Error No. 2:
{¶ 14} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT
FOUND DEFENDANT GUILTY OF THE [sic] VIOLATING A PROTECTION ORDER
WHEN THERE WAS NO TESTIMONY BY LAW ENFORCEMENT WHO ALLEGEDLY
SERVED THE DEFENDANT WITH THE ORDER.
{¶ 15} Assignment of Error No. 3:
{¶ 16} THE VERDICT WAS BASED UPON INSUFFICIENT EVIDENCE AND/OR
WAS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE AND THE TRIER
OF FACT CLEARLY LOST ITS WAY.
{¶ 17} In his second and third assignments of error, Brown argues that his
convictions are based upon insufficient evidence and are against the manifest weight of
the evidence. Brown's arguments are without merit.
{¶ 18} Whether the evidence presented at trial is legally sufficient to sustain a
verdict is a question of law. State v. Davidson, 2018-Ohio-1779, ¶ 14 (12th Dist.). When
reviewing the sufficiency of the evidence underlying a conviction, an appellate court
examines the evidence to determine whether such evidence, if believed, would convince
the average mind of the defendant's guilt beyond a reasonable doubt. State v.
MacPhereson,
2024-Ohio-5359, ¶ 13 (12th Dist.). Therefore, "[t]he relevant inquiry is
whether, after viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime proven beyond
a reasonable doubt."
Id.
{¶ 19} A manifest weight of the evidence challenge examines the "inclination of
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the greater amount of credible evidence, offered at a trial, to support one side of the issue
rather than the other." State v. Barnett, 2012-Ohio-2372, ¶ 14 (12th Dist.). To determine
whether a conviction is against the manifest weight of the evidence, the reviewing court
must look at the entire record, weigh the evidence and all reasonable inferences, consider
the credibility of the witnesses, and determine whether in resolving the 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. Graham,
2009-Ohio-2814, ¶ 66 (12th Dist.).
{¶ 20} In reviewing the evidence, an appellate court must be mindful that the
original trier of fact was in the best position to judge the credibility of witnesses and
determine the weight to be given to the evidence. State v. Mahmoud, 2024-Ohio-4624,
¶ 13 (12th Dist.). An appellate court will overturn a conviction due to the manifest weight
of the evidence only in the exceptional case in which the evidence weighs heavily against
the conviction. State v. Zitney,
2021-Ohio-466, ¶ 15 (12th Dist.). A determination that a
conviction is supported by the manifest weight of the evidence will also be dispositive of
the issue of sufficiency. State v. Reeder,
2021-Ohio-2988, ¶ 31 (12th Dist.).
Violation of a Protection Order
{¶ 21} Brown was convicted of violating a protection order in violation of R.C.
2919.27(A)(1), which provides, in relevant part, that no person shall recklessly violate the
terms of a protection order issued pursuant to R.C. 3113.31. "A person acts recklessly
when, with heedless indifference to the consequences, the person disregards a
substantial and unjustifiable risk that the person's conduct is likely to cause a certain result
or to be of a certain nature." R.C. 2901.22(C).
{¶ 22} Brown contends that his conviction of violation of a protection order was not
supported by sufficient evidence or was against the manifest weight of the evidence
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because: (1) Deputy Daniels, the officer who read the protection order to Brown and
served it upon him did not appear and testify to those facts; (2) the protection order did
not account for Mason's basement, where Brown resided, being a separate portion of the
home with a separate entrance; and (3) Sergeant Collier's testimony concerning the
service of the protection order and his body cam recording of the incident were
inadmissible hearsay which should not have been admitted into evidence.
{¶ 23} A protection order issued pursuant to R.C. 3113.31 mandates notice to the
respondent. State v. Wilson, 2021-Ohio-1444, ¶ 8 (6th Dist.). Such notice requires either
service of the order or constructive notice.
Id. According to R.C. 2919.27(D),
In a prosecution for a violation of this section, it is not
necessary for the prosecution to prove that the protection
order or consent agreement was served on the defendant if
the prosecution proves that the defendant was shown the
protection order or consent agreement or a copy of either or a
judge, magistrate, or law enforcement officer informed the
defendant that a protection order or consent agreement had
been issued, and proves that the defendant recklessly
violated the terms of the order or agreement.
Thus, it is unnecessary for the state to prove that a defendant has been served with the
protection order if the state can otherwise prove that a law enforcement officer informed
the defendant that the protection order had been issued. State v. Lay, 2021-Ohio-892, ¶
11 (12th Dist.).
{¶ 24} Following review, we find Brown's conviction for violating a protection order
is supported by the manifest weight of the evidence. In this case, Sergeant Collier
informed Brown of the protection order and advised him, on multiple occasions, that he
needed to vacate the residence. This alone is sufficient to satisfy the notice requirement
under R.C. 2919.27(D). However, Sergeant Collier also testified that Deputy Daniels
served Brown with a copy of the protection order. The recording from Sergeant Collier's
body cam captured Deputy Daniels serving Brown with the protection order, reading the
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order out loud to him, and providing him with a copy. Sergeant Collier then gave Brown
multiple opportunities to pack his belongings and comply with the order, but Brown
refused. After several minutes of warnings and consistent refusals, Sergeant Collier
informed Brown that he was under arrest. Thus, not only was Brown informed about the
protection order by two different law enforcement officers, but the record also shows that
Brown was personally served with a copy of the order. Brown's explicit refusal to leave
the residence certainly amounted to a reckless violation of the protection order. See Lay
at ¶ 14.
{¶ 25} On appeal, Brown argues the state failed to introduce testimony from
Deputy Daniels who served the protection order. He therefore maintains the state failed
to meet its burden of proof as to the notice requirement. However, for the reasons listed
above, testimony from Deputy Daniels was unnecessary in light of R.C. 2919.27(D).
{¶ 26} Furthermore, even if this were not the case, the evidence from Sergeant
Collier's body cam clearly shows Deputy Daniels serving Brown with the protection order,
reading the order's contents, and providing Brown with a copy. To that point, Brown
makes a general assertion that the statements captured on the body cam are
impermissible hearsay. In so doing, he presents no analysis of the issue. As to the claim
that the statements are hearsay, we note that a statement only constitutes hearsay if it is
offered in evidence to prove the truth of the matter asserted. Evid. R. 801(C).
Statements, such as those made by Deputy Daniels advising Brown of the protection
order, are typically not hearsay because they are not offered to establish the truth of the
matter asserted, but rather for the non-hearsay purpose of establishing that Brown had
notice of the protection order. See State v. Osie, 2014-Ohio-2966, ¶ 118 ("A statement
is not hearsay when offered for a purpose other than to prove the truth of the matter
asserted."). Nevertheless, we need not elaborate further, as it is not this court's
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responsibility to construct Brown's argument for him. App.R. 16(A)(7) requires an
appellant's brief to include an argument containing the appellant's contentions with
respect to each assignment of error presented for review and "the reasons in support of
the contentions, with citations to the authorities, statutes, and parts of the record on which
appellant relies." App.R. 12(A)(2) provides that an appellate court "may disregard an
assignment of error presented for review if the party raising it fails to identify in the record
the error on which the assignment of error is based or fails to argue the assignment
separately in the brief, as required under App.R. 16(A)." State v. Philpot, 2024-Ohio-
2596, ¶ 32 (12th Dist.).
{¶ 27} Finally, Brown makes one last, cursory argument that he did not violate the
terms of the protection order "as he understood it." To support this argument, Brown
claims that there are "two separate portions" of the residence with "separate entries."
Brown therefore argues that he did not enter "the part of the home occupied by [Mason]."
However, this argument is without merit, as his characterization of the residence is
inaccurate. In this case, Brown was simply in the basement, which is a part of the
residence. There is no evidence to support Brown's assertions otherwise. Accordingly,
we find Brown's conviction for violating a protection order is supported by the manifest
weight of the evidence.
Resisting Arrest
{¶ 28} Brown was also convicted of resisting arrest in violation of R.C. 2921.33(A).
That statute provides, "[n]o person, recklessly or by force, shall resist or interfere with a
lawful arrest of the person or another." In determining the lawfulness of an arrest, this
"court need not find that the elements of the underlying charge have been proven [beyond
a reasonable doubt], but there must exist a reasonable basis for the arrest." State v.
Mitchell, 2011-Ohio-2465, ¶ 33 (12th Dist.). In other words, an arrest is "lawful" if the
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surrounding circumstances would give a reasonable police officer cause to believe that
an offense has been or is being committed. In re A.M.I., 2015-Ohio-367, ¶ 36 (12th Dist.).
{¶ 29} We find Brown's conviction for resisting arrest is also supported by the
manifest weight of the evidence. As previously addressed, Brown violated the protection
order and was told he was under arrest. Sergeant Collier testified that Brown refused his
reasonable requests and elected to ignore the officers. After multiple attempts to gain
control of the situation, Sergeant Collier determined that he needed to take Brown to the
ground to secure him in handcuffs. Sergeant Collier stated that Brown pulled away,
tensed up, and refused to comply. During the brief physical altercation, Brown knocked
off and damaged Officer Houk's glasses.
{¶ 30} On appeal, Brown again provides only cursory arguments claiming, for
example, that he objected to "being manhandled" and arguing that he "did not use force."
However, the trial court, as trier of fact, was in the best position to weigh the credibility of
the witnesses and the weight to be given the evidence. State v. Terry, 2021-Ohio-4043,
¶ 16 (12th Dist.). Convictions are not against the manifest weight of the evidence simply
because the trier of facts believed the state's evidence. State v. Gregory, 12th Dist.
Clermont No. CA2022-10-070,
2023-Ohio-1700, ¶ 18. In this case, the state presented
ample evidence showing that Brown resisted arrest, including through the introduction of
the body cam evidence, which clearly showed Brown resisting arrest. As a result, we find
Brown's conviction for resisting arrest is supported by the manifest weight of the evidence.
Conclusion
{¶ 31} In light of the foregoing, we find Brown's convictions are supported by the
manifest weight of the evidence and are not based upon insufficient evidence. Brown's
second and third assignments of error are overruled.
{¶ 32} Assignment of Error No. 1:
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{¶ 33} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT
SENTENCED THE DEFENDANT USING AN UNVERIFIED AND UNSTIPULATED
CRIMINAL HISTORY WITHOUT A PRESENTENCE INVESTIGATION AND THEN
ORDERED CONSECUTIVE SENTENCES FOR A SERIES OF EVENTS IN A SINGLE
OCCURRENCE.
{¶ 34} In his first assignment of error, Brown argues the trial court erred by ordering
him to serve consecutive terms of 30 days in jail for resisting arrest and 120 days in jail
for violating the protection order. Brown supports this claim by arguing that the trial court
relied upon "unspecified sources" regarding his criminal history.1 He further maintains
that a consecutive sentence was inappropriate because the offenses were a "continuous
series of events" and the sentence was disproportionate and not necessary to protect the
public.
{¶ 35} This court reviews a trial court's sentence on a misdemeanor violation under
an abuse of discretion standard. State v. Jezioro, 2017-Ohio-2587, ¶ 6 (12th Dist.). An
abuse of discretion connotes more than an error in law or judgment; it implies that the
court's attitude is unreasonable, arbitrary, or unconscionable. State v. Sanchez-Garza,
2017-Ohio-1234, ¶ 33 (12th Dist.).
{¶ 36} Pursuant to R.C. 2929.21 and 2929.22, trial courts have broad discretion
when determining what sentence is appropriate for each given misdemeanor case. State
v. Kinsworthy, 2014-Ohio-2238, ¶ 30 (12th Dist.). When determining the appropriate
1. While Brown claims the trial court relied on "unspecified sources," we note it would not be uncommon
for the trial court to access online court dockets. Furthermore, this court may take judicial notice of publicly
accessible online court dockets. State v. Estridge,
2022-Ohio-208, ¶ 12, fn. 1 (2d Dist.) ("it is a common
practice for appellate courts to take judicial notice of publicly accessible online court dockets"). Our review
confirms that Brown has been convicted of multiple offenses in the Clermont County Municipal Court,
including assault, failure to comply, and misuse of the 911 system. State v. Brown, Clermont M.C. No.
2022CRB03406 (assault); State v. Brown, Clermont M.C. No. 2022CRB03393 (failure to comply); State v.
Brown, Clermont M.C. No. 2022CRB03368 (misuse of the 911 system).
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sentence, the trial court must be guided by the purposes of misdemeanor sentencing
which are "to protect the public from future crime by the offender and others and to punish
the offender." R.C. 2929.21(A). The trial court must also consider the factors listed in
R.C. 2929.22(B)(1), including the nature and circumstances of the offense, and may
consider any other factors that are relevant to achieving the purposes and principles of
misdemeanor sentencing. State v. Fisher, 2020-Ohio-3764, ¶ 11 (12th Dist.).
{¶ 37} The trial court is not required to make consecutive sentence findings under
R.C. 2929.14(C)(4) prior to ordering consecutive sentences for jail terms imposed for
misdemeanor offenses. State v. Fluhart, 2021-Ohio-2153, ¶ 25 (12th Dist.). That statute
is instead reserved for circumstances where the trial court imposes consecutive
sentences for prison terms imposed for felony offenses. State v. Henson,
2021-Ohio-38,
¶ 17 (12th Dist.). The trial court need only "specify" that the jail terms being imposed
were to be served consecutively.
Id.
{¶ 38} After a thorough review of the record, we find no error in the trial court's
decision to sentence Brown to 30 days in jail for resisting arrest and 120 days in jail for
violating a protection order. We also find no error in the trial court's decision ordering
those jail terms to be served consecutively. The sentence imposed for each offense falls
within the statutory limits for first-and-second-degree misdemeanor offenses. R.C.
2929.24(A)(1) (the maximum jail term a trial court can impose for a first-degree
misdemeanor offense is 180 days); R.C. 2929.24(A)(2) (the maximum jail term a trial
court can impose for a second-degree misdemeanor offense is 90 days). Furthermore,
because there is no affirmative indication that the trial court failed to consider any of the
mandatory provisions set forth in either R.C. 2929.21 or 2929.22, the trial court is
presumed to have complied with both statutes prior to issuing its sentencing decision.
Jezioro, 2017-Ohio-2587 at ¶ 7 ("[a] trial court is presumed to have considered the
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statutory factors when the sentence is within the statutory limits and there is no affirmative
showing that the trial court failed to do so").
{¶ 39} Though Brown claims the trial court should have ordered a presentence-
investigative report ("PSI") and erred by relying on "unspecified sources," it is well
established that a PSI is not mandatory in a misdemeanor case. State v. Doty, 2019-
Ohio-917, ¶ 14 (12th Dist.). Moreover, the trial court specifically stated that it was not
relying on the state's representation of Brown's criminal history and would instead conduct
its own inquiry. Brown does not present any argument that the trial court relied on
inaccurate information. Furthermore, it is unclear why Brown believes the continuous
nature of the offenses has any bearing on whether the jail terms should be ordered
consecutively, as both offenses were clearly separate and distinct that resulted in
separate harm. There is no reason that Brown should not be subject to consecutive jail
terms merely because the offenses occurred close in time. Accordingly, finding no merit
to any of the arguments raised herein, we find Brown's first assignment of error lacks
merit and is overruled.
{¶ 40} Assignment of Error No. 4:
{¶ 41} DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHTS TO DUE
PROCESS, TRIAL BY AN IMPARTIAL JURY, AND EFFECTIVE ASSISTANCE OF
COUNSEL.
{¶ 42} In his fourth assignment of error, Brown argues that he received ineffective
assistance of counsel.2 To prevail on an ineffective assistance of counsel claim, appellant
must show his trial counsel's performance was deficient, and that he was prejudiced as a
2. Brown also makes a separate argument that he was denied his right to a jury trial. However, the record
does not support this claim. App.R. 12(A)(2); App.R. 16(A).
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result. State v. Clarke, 2016-Ohio-7187, ¶ 49 (12th Dist.). Trial counsel's performance
will not be deemed deficient unless it fell below an objective standard of reasonableness.
Davidson,
2018-Ohio-1779 at ¶ 26. To show prejudice, appellant must establish that, but
for his trial counsel's errors, there is a reasonable probability that the result of his trial
would have been different.
Id.
{¶ 43} The failure to satisfy either prong of the analysis is fatal to an ineffective
assistance of counsel claim. Clarke at ¶ 49. Counsel is strongly presumed to have
rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment. State v. Burns,
2014-Ohio-4625, ¶ 7 (12th Dist.).
{¶ 44} Brown initially argues that he was forced to proceed to trial with an attorney
that he had "fired." This issue arose during the hearing in which Brown's public defender
requested a competency evaluation and Brown interjected that "[h]e's fired. I've already
did this. Went through it last year." The issue was never squarely raised again. Brown
did mention at the bench trial that he thought "Owen" was going to represent him,
however, there was no notice of appearance indicating any new representation.
Furthermore, given the context, Brown's "he's fired" comment is better understood as a
mere fit of pique rather than a sincere attempt to replace his public defender. Additionally,
while an indigent defendant has the right to competent counsel, they do not have the right
to appointed counsel of their own choosing. In re C.L., 2024-Ohio-616, ¶ 37 (12th Dist.).
An indigent defendant seeking a substitute of appointed counsel must demonstrate good
cause, which would include circumstances such as a conflict of interest or a complete
breakdown in communication. State v. Wilson,
2002-Ohio-5506, ¶ 31 (12th Dist.); State
v. Gonzalez, 6th Dist. Ottawa No. OT-23-027,
2024-Ohio-4515, ¶ 15 (6th Dist.). Brown
does not allege that there was a conflict of interest or a complete breakdown in
communication. Brown's only comment to the court was that his public defender had
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advised him of the weakness of his case. Given the strength of the evidence presented
against Brown, this was an appropriate concern. Brown's arguments to the contrary are
without merit.
{¶ 45} Brown also argues he received ineffective assistance of counsel because
his public defender entered into certain stipulations. Specifically, Brown argues that his
public defender should not have stipulated to the admission of his mental health
evaluation and should have requested a second opinion. Brown also maintains that his
public defender should not have stipulated to the admissibility of the recording from
Sergeant Collier's body cam. However, it is well established that decisions regarding
what stipulations should be made and what objections should be made primarily involve
trial strategy and tactics. Davidson, 2018-Ohio-1779 at ¶ 28. Even debatable trial
strategies and tactics do not constitute ineffective assistance of counsel. State v. Wood,
2020-Ohio-422, ¶ 28 (12th Dist.).
{¶ 46} In this case, Brown did not receive ineffective assistance of counsel on the
stipulation regarding his competency evaluation. State v. Kyles, 2024-Ohio-998, ¶ 32
(12th Dist.) (counsel was not deficient for not seeking another competency evaluation).
Though Brown does appear to have mental health issues and cognitive deficits, the first
evaluation found Brown competent and there is no reasonable indication that a second
evaluation would have rendered a different result. As we have stated previously, mental
illness does not automatically indicate incompetence to stand trial. State v. Cullen, 2024-
Ohio-1916, ¶ 27 (12th Dist.); State v. Spurrier,
2021-Ohio-1061, ¶ 48 (11th Dist.). That
Brown's public defender chose not to further contest Brown's competency after receiving
the report that Brown was competent to stand trial was a strategic decision that Brown
only attacks via speculative arguments. Mere speculation is insufficient to establish
ineffective assistance.
Kyles at ¶ 32-34.
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{¶ 47} We further find that Brown did not receive ineffective assistance of counsel
regarding the admissibility of the body cam evidence. Though Brown contends the
recording contains hearsay from Deputy Daniels, he again presents no analysis on the
issue. As we stated earlier, statements such as those made by Deputy Daniels advising
Brown of the protection order are typically not hearsay because they are not offered to
establish the truth of the matter asserted. See Osie, 2014-Ohio-2966 at ¶ 118. Moreover,
the state overwhelmingly proved that Brown had notice of the protection order. That is,
even if Deputy Daniels' words and statements were removed from the recording, there
would still be ample evidence to support Brown's convictions. Even if there was no
stipulation as to the recording, there is nothing to suggest it would not have been
admissible. Sergeant Collier could easily have authenticated the recording with testimony
that it fairly and accurately depicts the events he personally witnessed. The decision not
to object and stipulate to the admissibility of the body cam evidence was reasonable trial
strategy.
{¶ 48} Brown next argues that his public defender should have objected to the
prosecutor's recitation of his criminal history and again when the trial court relied on
"unspecified sources" to determine his criminal history. However, these arguments are
also without merit. As an initial matter, we note that Brown cannot prove any resulting
prejudice, as the trial court expressly stated that it did not consider the information
provided by the state. Instead, the trial court stated that it only considered Brown's
criminal history regarding his local crimes in the municipal court, which we have discussed
above. As this court has previously explained, courts have historically been permitted to
consider a wide range of information in imposing a sentence, including hearsay evidence
and evidence of an offender's criminal history. State v. Bittner, 2019-Ohio-3834, ¶ 23
(12th Dist.). Accordingly, this claim of ineffective assistance of counsel is also without
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merit.
{¶ 49} Finally, Brown argues that the doctrine of cumulative error should apply.
However, because Brown has not demonstrated any error, let alone multiple or
cumulative errors, we find that the doctrine of cumulative error is inapplicable and
provides no basis for reversal. State v. Wilson, 2019-Ohio-338, ¶ 37 (12th Dist.). Brown's
fourth assignment of error is overruled.
{¶ 50} Judgment affirmed.
BYRNE, P.J., and PIPER, J., concur.
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