Fifth District Summary: December 15, 2014

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State of Ohio v. Kenneth Raymond Brunner: Kenneth Raymond Brunner was found guilty for one count of rape in violation of R.C. 2907.02(A)(2). On appeal to the Fifth District, Mr. Brunner claims that his conviction was against the manifest weight and sufficiency of the evidence because there was inconsistent testimony and lack of credible eyewitness testimony and physical evidence. The Fifth District disagreed.

The inconsistent testimony presented to the jury was from the victim, Ms. Harper, and Mr. Brunner himself. Ms. Harper testified that she had called Mr. Brunner to see if he wanted to hang out. After they met up, they decided to go to a cemetery because it was nice out and the cemetery was nice and quiet. She then testified that Mr. Brunner forced her to perform fellatio on him at knifepoint. Mr. Brunner denied threatening or forcing Ms. Harper to engage in oral sex. He claimed because his girlfriend was Christian and Ms. Harper’s boyfriend lived out-of-state, they had a mutual sexual agreement between friends “where she would give me oral and I would give her oral in return.” He claimed this was the third time they had performed oral sex on each other.

Ms. Harper’s neighbor and the responding officer testified that Ms. Harper was in a high emotional state, upset, crying, and yelling she had been raped. She also testified that she had cut marks on her neck and had taken photographs of herself when was in the hospital. One of the nurses at the hospital documented scratches on Ms. Harper’s neck, upper right arm, and right hand, but did not take any photographs.

The Fifth District found that this was sufficient corroborating evidence to substantiate Ms. Harper’s version of the events beyond a reasonable doubt. As triers of fact, the jury decides the weight to be given to the evidence and the credibility of the witnesses, and unless they clearly lost their way and created a manifest miscarriage of justice, a new trial will not be ordered.

State of Ohio v. Michael J. Pesano: Michael J. Pesano was convicted and sentenced for one count of violating a protection order. His daughter-in-law, Jennifer, obtained the protection order against him. She lived in a house with her husband before obtaining the “protection order”, and moved to her mother’s home shortly thereafter. Mr. Pesano went to the house with a police escort, due to the existence of the protection order, to obtain his belongings.

At the home were two lizards belonging to Mr. Pesano. Two days after he went to the house to obtain his belongings, he returned to the home to take care of the lizards and discovered the house was “freezing” because the furnace had been switched off. Mr. Pesano was concerned because lizards need to be kept warm by a warming light and be supplemented by sufficient temperature in the house. He found the lizards unresponsive, however, once the heat was turned back on they seemed to recover.

Mr. Pesano stated that at that point he was pretty upset not knowing if Jennifer knew the heat was off or it was just an issue with the money for the utilities. He then made a phone call to Jennifer and left a voice mail message. He called again in an hour, not leaving a message. Jennifer recognized his number and his voice. She then called her advocate who advised her that Mr. Pesano was not to call her for any reason and told her to call the authorities. A police officer was contacted and arrived at Jennifer’s residence. He listened to the message, recorded it, and took photos of the protection order. The officer later contacted Mr. Pesano to tell him that he was not to have any contact with Jennifer. Mr. Pesano admitted to the officer that he was aware of the existence of the protection order and that he was not to have contact with Jennifer, but stated he was not aware he wasn’t allowed to call and was trying to take care of his pets.

At trial, two exhibits were entered by the State of Ohio and none by Mr. Pesano. The first exhibit was a single photocopied sheet containing images of two compact discs. Also introduced was the county’s return of service, which was not admitted into evidence because it was not a certified copy. Mr. Pesano made reference to this, stating that when the officers delivered the protection order he did not receive a full copy. Instead, all he received were two little papers that stated he was being served a protection order and was to have no contact with Jennifer, but it did not contain any rule stating that he was not allowed to call her or have any other communication with her.

Mr. Pesano was found guilty of one count of violating a protection order pursuant to R.C. 2929.27(A)(1), which provides “no person shall recklessly violate…the terms of a protection order issued or consent agreement approved pursuant to section 2919.26 or 3113.31 of the Revised Code.” He appealed to the Fifth District arguing that the trial court’s finding was against the manifest weight and sufficiency of the evidence. The Fifth District disagreed.

On appeal, Mr. Pesano argued that the State of Ohio failed to establish the element of “a protection order issued or consent agreement approved pursuant to section 2919.26 or 3113.31 of the Revised Code” when the protection order itself was not entered into evidence. However, the Fifth District found Mr. Pesano’s repeated acknowledgment of the existence of a protection order relevant.

Mr. Pesano premised much of his argument on his testimony at trial that he only received “a couple of pages” of the order, which “did not include any of the rules which he was required to follow.” The Fifth District found that this argument goes to the credibility of the witness and is for the jury to decide, and stated that the jury could reasonably find that he knew he was not supposed to have contact with Jennifer. His removal of items from the house was with a police escort who mediated a discussion about the terms of the parties’ living arrangements, and Mr. Pesano acknowledged the officer who served him with the order told him “no contact with Jennifer.” He also testified he was “pretty upset” when he discovered the heat was off and the condition of the lizards prompting the call to Jennifer.

In light of Mr. Pesano’s acknowledgment that he knew he was not supposed to have any contact with Jennifer, the Fifth District found that when he called her more than once, he acted reckless pursuant to R.C. 2919.27(A)(1). A person acts recklessly when, with heedless indifference to the consequences he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature. Therefore, it was not against the manifest weight of the evidence and sufficiency of the evidence.

State of Ohio v. Jacob D. Powell: Jacob D. Powell was found guilty of Felonious Assault and Domestic Violence. He appealed to the Fifth District arguing that the Jury’s finding was not supported by sufficient evidence and was against the manifest weight of the evidence. The Court disagreed.

Powell resided with his girlfriend, Jennifer Herning, and their child in an apartment. Herning was the mother of Powell’s one-year old child and was seven months pregnant with Powell’s second child.

On the evening of November 3, 2013, Powell was sleeping in the basement of the apartment while Herning and the child were upstairs sleeping. The child woke up and would not go back to sleep. In order to help the child sleep, Herning and Powell would usually drive the child in the car.

Herning knocked on the basement door in order to get Powell’s attention so he could take the child and herself for a drive. The door had a latch on the inside and would not open. Herning ended up kicking the door open and found Powell sleeping. She tried several times to wake him but he would fall back asleep. Eventually Powell woke up and went upstairs. Herning explained that they needed to go for a drive to put the child to sleep. Powell attempted to lie down with the child to put the child back to sleep but the child woke again. Herning insisted they take the child for a drive in the car and went downstairs to get Powell’s glasses so he could drive. When she came back upstairs she heard Powell swearing and thought he was drunk. When she went into the bathroom Powell followed her and slammed the door shut. He began hitting her in the head with his fists. Herning asked Powell to let her out of the bathroom to check on the child because she was concerned the child could fall down the stairs. Powell let her out of the bathroom and Herning went downstairs to latch the basement door. Powell followed her and resumed hitting her. Herning punched Powell once, but she fell to the floor and grabbed onto Powell’s leg. Powell tripped and fell, but got up. Herning threw a plastic storage container at him. Herning got up and went to the living room, and attempted to call for help on her cellphone. Powell grabbed her cell phone and threw the plastic storage container at her. The container bounced off Herning and hit the child. Herning checked on the child and the child was not hurt.

Powell then grabbed Herning and pinned her to the ground. She was lying on her back and Powell was sitting on her stomach. He started choking her with his hands. When he let go for a moment, Herning told him to get off her belly. He got off her stomach but continued to choke her. Herning vomited while he was choking her but was able to turn her head to clear her mouth.

Powell let go and walked away. Herning next recalled that they were in the bedroom where he started choking her again and screaming at her. While on the ground Powell choked her from behind and slammed her head into the ground by her hair. He screamed at her, punched her, and kicked her on the right side of her head. He stomped on her back, bit her finger, her cheek, and the back of her head. He walked out of the bedroom and then he returned to continue choking and punching Herning. Herning was in front of the bed and lying on the ground. Powell kicked her in the chest. Herning moved so Powell would not kick her in the stomach. After Powell let her go at one point, Herning saw her child standing at the bed and looking at her mother.

When Powell left the room and went to the basement, Herning left the house and ran to the neighbor’s home. She knocked on the door and the neighbor let her in. She told the neighbor that her boyfriend had beaten her up and she needed medical help. The neighbor called 911 and Herning ran back to her home to get her child. Powell had gone outside so Herning entered the apartment and locked the doors. Powell smashed a window in the apartment. Herning grabbed the child, went out the back door, and fled back to the neighbor’s home.

While waiting for the paramedics, the neighbor saw Herning bleeding profusely and her blood was getting on the floor. The neighbor saw Powell across the street and Powell told the neighbor that he had been asleep when Herning attacked him. The neighbor asked Powell to leave. When the police arrived at the neighbor’s home, the paramedics were treating Herning and Powell had driven away. The officers pursued Powell and eventually pulled him over. He was covered in blood and crying. He was under arrest and complained about blood throughout his body. The officers noticed scratches on his arm and he was taken to Aultman Hospital. He was cleared with minor abrasions.

Herning was admitted to Mercy Medical Center for several days due to her injuries and concerns for her pregnancy. The fetus did not appear to be injured.

The nurse’s examination of Herning showed petechial, the bursting of blood vessels, in Herning’s eyes, ear canals, face, chest, and neck. The nurse testified that petechial occurred within 15 to 30 seconds of strangulation. The blood vessels burst due to lack of oxygen. The nurse also observed bruising, swelling, and bite marks on Herning’s body. Usually the Nurse would expect to see handprints due to strangulation but there was so much swelling in her neck that the nurse felt there must have been a lot of force applied. The nurse testified that she was surprised Herning was still alive.

At the closing of the State’s case, Powell moved for dismissal of the charges pursuant to Crim. R. 29, which the trial court denied. The defense rested and renewed its Crim. R. 29 motion, and the trial court denied the motion again. The jury deliberated and returned with a guilty verdict on both charges. Powell was sentenced to five years for his conviction for Felonious Assault and the trial court merged the Domestic Violence conviction with the Felonious Assault conviction.

Powell then appealed claiming that his conviction was against the manifest weight and sufficiency of the evidence. Specifically he argued that Herning admitted to attempting to wake him by physically shaking and kicking him. The Fifth District acknowledge that the evidence showed Herning did attempt to wake Powell, but stated that there was no evidence that Powell suffered any injury from her action. Powell’s only noted injury was minor abrasions he suffered when he broke the glass in the apartment attempting to gain entrance when Herning locked the doors. The evidence clearly showed that Powell responded to being awakened by Herning by punching, biting, kicking, and strangling Herning in the presence of their one-year old. The witnesses observed Herning covered in blood and vomit after the incident with multiple bruises and bite marks on her body. Herning required a hospital stay due to her injuries and because of possible harm to the fetus.

The Fifth District found, in light of these facts, a reasonable trier of fact could have found, beyond a reasonable doubt, Powell knowingly caused serious physical harm to Herning as per the Felonious Assault and Domestic Violence statutes. The Court also found that the jury did not clearly lose its way and create a manifest miscarriage of justice requiring Powell’s conviction to be reversed and a new trial ordered. Thus, Powell’s assignment of error was overruled.

State of Ohio v. Samantha Huhn: Samantha Huhn forcibly entered into the home of an 84-year-old woman and robbed her of her purse and money. She entered pleas of guilty to one count aggravated robbery and one count of aggravated burglary, both felonies of the first degree. She appealed to the Fifth District arguing that the Trial court erred in failing to properly merge the two counts as allied offenses of similar import at sentencing pursuant to R.C. 2941.25.

R.C. 2941.25 states that “where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.” However, if “the defendant’s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with separate animus as to each, the indictment or information may contain counts for all offenses, and the defendant may be convicted of all of them.”

The Fifth District review of her assignment of error was hampered due to the absence of an adequate record. The Court referred to a previous case it had where they proceeded to apply the principle that in the absence of an adequate record, an appellate court presumes the regularity of the trial court proceedings. However, in another subsequent case, the Fifth District recognized that “[w]hen the plea agreement is silent on the issue of allied offense of similar import the trial court is obligated under R.C. 2941.25 to determine whether the offenses are allied, and if they are, to convict the defendant of only one offense; if the trial fails to merge allied offenses of similar import, the defendant has the right to appeal the sentence.” The Ohio Supreme Court also indicated that the failure to merge allied offenses of similar import constitutes plain error. Furthermore, “a defendant’s plea to multiple counts does not affect the court’s duty to merge those allied counts at sentencing. This duty is mandatory, not discretionary.” Other appellate courts have concluded that it is the trial court, which should determine whether two offenses are allied offenses of similar import subject to merger under R.C. 2941.25 by considering the conduct of the accused.

The Fifth District decided that although it could attempt to review the police reports and other discovery documents themselves, they would instead sustain Ms. Huhn’s assignment of error and remand it for a limited re-sentencing hearing to analyze her conduct in the offenses at issue and to review potential merger of the offenses for sentencing.

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