State v. Brown

134 N.E.3d 783

2019 Ohio 1235

STATE of Ohio, Plaintiff-Appellee

v.Dorian BROWN, Defendant-Appellant

No. 106582

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: April 4, 2019

Eric M. Levy, 55 Public Square, Suite 1600, Cleveland, Ohio 44113, ATTORNEY FOR APPELLANT.

Michael C. O'Malley, Cuyahoga County Prosecutor, By: Andrew J. Santoli, Holly Welsh, Assistant County Prosecutors, The Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE.

BEFORE: Keough, J., E.A. Gallagher, P.J., and Jones, J.

JOURNAL ENTRY AND OPINION

KATHLEEN ANN KEOUGH, J.:

{¶1} In this delayed appeal, defendant-appellant, Dorian Brown ("Brown"), appeals his convictions for trafficking in persons and compelling prostitution. For the reasons that follow, we affirm.

{¶2} In November 2015, Brown was named in a 12-count indictment charging him with aggravated murder, murder, two counts of aggravated robbery, three counts of felonious assault, kidnapping, trafficking in persons, compelling prostitution, and grand theft. Most counts contained firearm, prior conviction, and repeat violent offender specifications.

{¶3} The case proceeded to a jury trial, where the following relevant evidence pertaining to Brown's convictions was presented.

{¶4} D.R., the victim identified in the trafficking in persons charge, testified that following her nineteenth birthday, she was struggling financially to support herself and her minor child. She approached her friend, D.B. who had told her that she engaged in prostitution and that her "dudes" would help D.R. and "get her where she needed to be." D.R. stated that because she trusted D.B. that she would be "100 percent safe," she voluntarily entered the world of prostitution. Around June 18, 2015, D.B.'s pimp, Jason Dowell a.k.a. Santana, picked up D.R. and her minor child and brought them to an Econo Lodge in Warrensville, Heights, Ohio. According to D.R., Santana explained the process from taking pictures to creating advertisements. When she arrived at the hotel, she met other prostitutes, including B.F.; Brown was also present. D.R. stated that B.F. and D.B. helped her with photographs and creating her backpage.com escort advertisement.

{¶5} At first D.R. worked for Santana, who paid for the hotel rooms, provided her and her son with food, and took care of them. However, he did not give her any money to help her financially support herself. She stopped working for him after a few days and began working for Brown, who told her he would give her fifty-percent of the money received from her "dates." D.R., D.B., and B.F. started working for Brown at an America's Best Value Inn near the airport.

{¶6} Throughout D.R.'s relationship with Brown, he took her and the other "girls"¹ to work at different hotels in Northeast Ohio and to Columbus on one occasion. D.R. stated that Brown once took her, D.B., B.F., another girl, and his girlfriend to Maryland because Brown "wanted to do something nice for us." Although D.R. stated it was a vacation, "we did work."

{¶7} Over time, Brown stopped giving D.R. money. According to D.R., Brown wanted to "build" the business and get a house instead of having to rent hotel rooms. From this point forward, Brown kept all the money D.R. earned. She stated that she did not want Brown to take all the money, but felt that he would be taking care of her and her son, so "it would be fine."

{¶8} However, the money situation was not "fine." By the end of June, or early July 2015, Brown stopped giving any money to D.R. even when she asked. She said typically he would give her money to get her nails done or buy clothes, but that stopped. It was clear to her and the other girls that Brown was treating them differently, which upset them. D.R. explained that she started prostituting to help herself and her son, but she was not getting any help; she needed money. D.R. said that she "wanted to get in, make the money, and get out." And when Brown changed the money arrangement, "it just kind of had me stuck there and I didn't really know what to do after that; I felt like I was in too deep."

{¶9} Despite the financial control over the girls, D.R. testified that she never saw Brown physically assaulting anyone, but once heard, in an adjacent room, an altercation between B.F. and Brown. She stated she heard "banging, [B.F.] yelling, and * * * things being thrown," and "cussing." Hearing this made D.R. "nervous because she did not want Brown to feel like he had to put his hands on [her]; so [she] cooperated and did what he asked [her] to do."

{¶10} Eventually, B.F. and D.B. decided to leave Brown. D.R. stated that she felt she could not leave because she needed money and had nowhere to go. It was after D.B. left that Brown got upset with her and grabbed her arm when the cost of a tattoo exceeded the original-quoted price — she said this made her feel "powerless" because without Brown she would "have nothing for her son."

{¶11} However, one night after Brown and his girlfriend left the hotel, D.R. left at D.B.'s encouragement and stayed in another room in the hotel. She and D.B. began working with Cartier and Dave. Brown's girlfriend called D.R. asking about her whereabouts, and despite being in the same hotel, D.R. told her that her aunt had picked her up.

{¶12} In the early morning hours of June 17, 2015, about four or five days after her abrupt decision to leave Brown, D.R. received a call about a "special" that she and D.B. offered where a person could receive services from two girls for one price. The escort advertisement included pictures of both D.R. and D.B. When she received the call, D.B. was no longer working in the business, but another prostitute, Elizabeth O'Brien, was working with D.R.

{¶13} When the caller arrived at the room, he was not alone. The men were later identified as Octavius Hudson and Marcellus Webster. Hudson testified that he and his friend Webster, who is also Brown's cousin, responded to the "backpage.com" escort advertisement. According to Hudson, Brown directed them to the Econo Lodge in Warrensville Heights.

{¶14} Hudson testified that when he and Webster arrived at the hotel room, they formulated a plan to only rob the two girls; however, he engaged in sexual conduct with D.R. prior to the attempted robbery. Following the sexual encounter, Hudson brandished his firearm and demanded money. Elizabeth attempted to attack Hudson; however, the gun fired, killing Elizabeth.

{¶15} Phone records revealed that during the early morning hours of July 17, 2015, Brown called Hudson's phone six times between 3:34 a.m. and 4:34 a.m. Hudson testified that following the shooting, Brown told him to discard his cell phone. Citing to "the code," he testified that Brown was not involved in the robbery, and denied telling police that Webster and Brown set up the robbery. The state's theory of the case was that Brown orchestrated the robbery in retaliation for D.R. and D.B. leaving.

{¶16} D.R. testified that after she left Brown, she never heard from him again until after Elizabeth's murder, when he called her. She stated she was scared to talk to him.

{¶17} D.B. testified that she worked as a prostitute for Santana, but when he left her, she started working for Brown. She stated that Brown was never physically abusive toward her, and she had no knowledge of him being abusive toward D.R., but knew that he abused B.F. Additionally, D.B. stated that she never witnessed, saw, or heard about any repercussions that any girl faced who left Brown. Nevertheless, she stated she was scared to testify, because she did not want to get hurt. D.B. admitted that had she not left "the business," she would have been in the room with D.R. the night Elizabeth was shot.

{¶18} B.F. testified that she began working as a prostitute for Brown in June 2015. She stated that he took pictures of her, and created her backpage.com advertisements. According to B.F., she was supposed to receive one-half of her earnings, but Brown did not give her any money. According to B.F., Brown wanted her to get a tattoo of a crown with a "D" on it, but she refused. She testified, over objection, that she left Brown because "he started to become something he wasn't and he kept putting his hands on me." (Tr. 1310.) And despite her never seeing Brown being physical with D.R., she stated, without objection, that he was "physically hitting me, * * * beating me, punching me, slapping me, whatever the case may be." (Tr. 1310.) She testified that D.R. was present one time when this happened to her.

{¶19} The jury found Brown guilty of trafficking in persons and compelling prostitution; and acquitted him of all the other charges relating to the murder. Pursuant to R.C. 2905.32(D), the trial court merged the two convictions, and the state elected that Brown be sentenced on Count 10, trafficking in persons. Pursuant to R.C. 2905.32(E), the court imposed a definite prison sentence of 13 years, and ordered that the prison sentence be served prior to and consecutive with the five-year sentence imposed in Cuyahoga C.P. No. CR-16-611487. The trial court classified Brown as a Tier II sex offender based on the convictions in both cases.²

{¶20} Brown now appeals, raising eight assignments of error.

I. Unanimous Verdict — Alternative Means v. Multiple Acts

{¶21} In his first assignment of error, Brown contends that the trial court committed plain error and violated his right to due process of law and a unanimous verdict pursuant to Crim.R. 31(A) when the jury found him guilty of trafficking in persons, where the jury instructions included all possible theories of the offense that could be committed by alternative means or multiple acts.

{¶22} Brown did not object to the jury instructions. Accordingly, this assignment of error is reviewed for plain error. Under Crim.R. 52(B), plain errors affecting substantial rights may be noticed by an appellate court even though they were not brought to the attention of ...