[Cite as State v. Brown, 2018-Ohio-3674.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 106518

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

CHARLES BROWN

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-17-618365-A 

BEFORE: S. Gallagher, P.J., Jones, J., and Keough, J. 

RELEASED AND JOURNALIZED: September 13, 2018 
[Cite as State v. Brown, 2018-Ohio-3674.]

ATTORNEY FOR APPELLANT 

Steve W. Canfil 

55 Public Square, Suite 2100 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE

Michael C. O’Malley 

Cuyahoga County Prosecutor 

By: Anthony Thomas Miranda 

 Eleina Thomas 

Assistant Prosecuting Attorneys 

Justice Center - 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
[Cite as State v. Brown, 2018-Ohio-3674.]

SEAN C. GALLAGHER, P.J.: 

{¶1} Charles Brown appeals his convictions for various charges stemming from 

an incident in which he attempted to shoot at two police officers who lawfully pulled 

Brown’s vehicle over and the ensuing foot chase necessitated by Brown’s flight. For the 

following reasons, we affirm. 

{¶2} Two Cleveland police officers initiated a traffic stop on a vehicle matching 

the description of one involved in armed robberies. When the vehicle stopped, Brown 

jumped out of the passenger side in a shooting stance with a handgun aimed in the 

direction of the officers’ patrol car. The officers both took cover, expecting shots to be 

fired. One of the officers immediately heard and saw Brown fleeing the area. 

Additional responding officers caught up to Brown, who was still in possession of the 

handgun. Brown was arrested and taken to a hospital for treatment for a superficial cut 

on his forehead. He was combative and twice attempted to escape police custody. 

{¶3} A detective at the scene of the arrest picked up the handgun, which Brown 

had discarded, and unloaded the weapon. In the process, the chambered round and one 

from the top of the magazine were ejected and preserved. One of the ejected shells had a 

strike mark from the firing pin, indicating that there was an attempt to fire the handgun 

but the round of ammunition was faulty. 

{¶4} After a bench trial, Brown was convicted of two counts of felonious assault 

of a police officer, resisting arrest, obstructing justice, improperly handling a firearm, 

having a weapon while under disability, escape, and associated repeat violent offender 
and firearm specifications. The 7-year sentence imposed on the repeat violent offender 

specification and the 14-year term on one of the felonious assault counts with an 

associated firearm specification were imposed consecutive to each other, but all other 

sentences were imposed concurrently for an aggregate term of 21 years in prison. 

{¶5} In the first assignment of error, Brown claims that he was denied the ability to 

represent himself at trial. Before trial, Brown’s counsel sought to withdraw, claiming 

that Brown wished to proceed to trial representing himself. The trial court conducted a 

hearing on the matter. After the court permitted counsel to withdraw and was discussing 

the appointment of new counsel, the trial court asked Brown, “No matter who I get for 

you as a new lawyer, you’re still going to want to represent yourself?” Brown 

indecisively answered, “I guess I can, yes.” After the equivocal answer, the trial court 

decided to hold the request for self-representation in abeyance pending the appointment 

of new counsel. The trial court notified Brown that if he was still unsatisfied with 

appointed counsel, the self-representation request would be revisited. Before trial, 

Brown indicated that he was satisfied with his new attorney. 

{¶6} A defendant’s “right to self-representation is rooted in the Sixth Amendment 

to the United States Constitution, which provides the following: ‘In all criminal 

prosecutions, the accused shall * * * have the Assistance of Counsel for his defense.’” 

State v. Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594, 63 N.E.3d 93, ¶ 25. “The 

Ohio Constitution provides that ‘[i]n any trial, in any court, the party accused shall be 

allowed to appear and defend in person and with counsel.’” Id., quoting Article I, 
Section 10, Ohio Constitution. A defendant “‘may proceed to defend himself without 

counsel when he voluntarily and knowingly and intelligently elects to do so.’” Id. at ¶ 

28, quoting State v. Gibson, 45 Ohio St.2d 366, 345 N.E.2d 399 (1976), paragraph one of 

the syllabus. A trial court’s denial of the right to self-representation is per se, reversible 

error when the defendant properly invokes the constitutional right. Id. 

{¶7} In order to be “proper,” the defendant must “unequivocally and explicitly 

invoke” his right. Id. at ¶ 29. Courts must “indulge in every reasonable presumption 

against waiver” of the right to counsel. Id., quoting Brewer v. Williams, 430 U.S. 387, 

404, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). Most important, in light of the particular 

facts of this case, even if an unequivocal and explicit request for self-representation is 

made, a defendant may later abandon that request by acquiescing to counsel’s legal 

representation. Id. at ¶ 31, citing State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 

772 N.E.2d 81, ¶ 42, and McKaskle v. Wiggins, 465 U.S. 168, 182, 104 S.Ct. 944, 79 

L.Ed.2d 122 (1984). 

{¶8} In order to invoke the right to self-representation, the invocation must be 

unequivocal and explicit. Id. at ¶ 38. In this case, Brown’s initial request was equivocal 

and the trial court did not err by appointing another attorney in the attempt to provide 

Brown with representation that satisfied his concerns. Absent an express invocation, the 

constitutional right to self-representation is waived. Id. Nothing from this record 

indicates that Brown pursued an intention to represent himself beyond the abandoned 

request that came after his first attorney was granted leave to withdraw. Cassano at ¶ 42. 
 Brown, therefore, waived any right to self-representation in accepting the advice and 

assistance of, and admitting that he was satisfied with, the second attorney appointed to 

represent Brown. Id. 

{¶9} Even if the first request was unequivocal, instead of denying Brown’s 

intention to proceed pro se, the trial court held the request in abeyance pending new 

counsel being appointed. Although Brown initially indicated a desire to represent 

himself, he conceded satisfaction in his second appointed attorney. His motion to invoke 

his right to self-representation was tacitly withdrawn or abandoned. Either way, he 

waived the right to represent himself at trial and the first assignment of error is overruled. 

{¶10} In the second assignment of error, Brown claims the trial court erred by 

relying on a final sentencing entry from an earlier conviction, Cuyahoga C.P. No. 

CR-09-523883-B, for the purposes of establishing the applicability of the repeat violent 

offender specification in this case. According to Brown, that final sentencing entry was 

entered nunc pro tunc, and therefore, the trial court was required to determine whether the 

final entry of conviction from another case in fact corrected a clerical mistake. 

{¶11} Neither the trial court nor this court has jurisdiction over the entry of 

conviction arising in a separate matter. State v. McGee, 8th Dist. Cuyahoga No. 102740, 

2015-Ohio-4908, ¶ 3, fn. 1 (no jurisdiction to review nunc pro tunc order in a separate 

proceeding). Even if the nunc pro tunc entry could be reviewed, the principles 

underlying res judicata preclude defendants from advancing arguments that were or could 
have been raised in another appeal. State v. Griffin, 138 Ohio St.3d 108, 

2013-Ohio-5481, 4 N.E.3d 989, ¶ 3. 

{¶12} If the nunc pro tunc entry was improper, Brown’s remedy was a direct 

appeal from the decision in that case. State ex rel. Davis v. Saffold, 143 Ohio St.3d 475, 

2015-Ohio-1517, 39 N.E.3d 1205, ¶ 11. The Ohio Supreme Court has held that the 

principles of res judicata are properly invoked to preclude a defendant from collaterally 

attacking a final conviction entered nunc pro tunc and the only remedy is a direct appeal 

from that order. Id. In this case, Brown cannot collaterally attack the entry of 

conviction entered in the CR-09-523883-B case number after failing to pursue or 

challenge that entry in a direct appeal. Brown’s argument, that the nunc pro tunc entry of 

conviction is void, could have been raised in a direct appeal in the CR-09-523883-B case 

number. Saffold at ¶ 11. That claim is barred by res judicata in this case. Id. The 

second assignment of error is overruled. 

{¶13} In the third and fourth assignments of error, Brown challenges the 

sufficiency of the evidence in support of the felonious assault convictions. Although 

Brown presented the fourth assignment of error in terms of the weight of the evidence, he 

expressly indicated that his arguments only addressed the sufficiency of the evidence. A 

claim that a jury verdict is against the weight of the evidence involves a separate and 

distinct test that is much broader than the test for sufficiency. State v. Drummond, 111 

Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 193. In light of the fact that Brown 

has presented no separate arguments in support of his arguments claiming the conviction 
is against the weight of the evidence, we will solely address the sufficiency of the 

evidence as presented. App.R. 16(A)(7); State v. Cassano, 8th Dist. Cuyahoga No. 

97228, 2012-Ohio-4047, ¶ 2. 

{¶14} A claim of insufficient evidence raises the question whether the evidence is 

legally sufficient to support the verdict as a matter of law. State v. Thompkins, 78 Ohio 

St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. In reviewing a sufficiency challenge, 

“[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.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 

492 (1991), paragraph two of the syllabus. 

{¶15} R.C. 2903.11(A)(2) provides that no person shall knowingly cause or 

attempt to cause physical harm to another by means of a deadly weapon. If the victim is 

a peace officer, the crime becomes a felony of the first degree. Brown claims that the act 

of pointing a gun at the two police officers is not sufficient evidence to prove that he 

attempted to cause physical harm with a deadly weapon. 

{¶16} We acknowledge that the Ohio Supreme Court has held that “[t]he act of 

pointing a deadly weapon at another, without additional evidence regarding the actor’s 

intention, is insufficient to convict a defendant of the offense of ‘felonious assault’ as 

defined by R.C. 2903.11(A)(2).” State v. Brooks, 44 Ohio St.3d 185, 542 N.E.2d 636 

(1989), syllabus. In this case, there was evidence that Brown attempted to fire his 

handgun, undisputedly a deadly weapon, at the police officers. A shell that misfired was 
collected from the weapon Brown possessed, indicating that he pulled the trigger. But 

for a malfunction, the gun would have discharged the bullet. That two shell casings were 

ejected, so that the trier of fact would have to consider whether the malfunctioning round 

was in the magazine or the chamber, addresses the weight of the evidence, not its 

sufficiency. As previously mentioned, Brown has not identified any basis to reverse the 

conviction as being against the weight of the evidence. App.R. 16(A)(7). Even if we 

consider the fact that two shells were ejected so that the officer could not verify that the 

chambered round contained the strike mark, Brown has not demonstrated his case to be 

the exceptional case warranting a reversal based on his convictions being against the 

weight of the evidence. 

{¶17} Nevertheless, his sole claim — that there is no evidence in support of the 

felonious assault convictions because taking a shooting stance alone is insufficient to 

prove an attempt to cause physical harm with a deadly weapon — is not supported by the 

record. 

{¶18} In this case, one of the shells ejected from the weapon in Brown’s 

possession had a strike mark on the firing mechanism of the shell, indicating that the 

weapon had misfired after Brown pulled the trigger. The trier of fact could infer that 

Brown attempted to fire the weapon when he took the shooting stance as the two police 

officers were exiting the squad car from the fact that one of the shells retrieved from the 

discarded handgun indicated that there was an unsuccessful attempt to fire the weapon. 
There is sufficient evidence of felonious assault of two police officers with a deadly 

weapon. 

{¶19} Brown attempts to counter the inference, of attempting to fire the handgun 

at the officers from the strike mark on the shell, by claiming that it is an inference that is 

stacked upon another inference. Ohio law precludes the stacking of inferences to prove a 

claim. Bier v. Am. Biltrite, 8th Dist. Cuyahoga No. 97085, 2012-Ohio-1195, ¶ 22; 

Mercer v. Wal-Mart Stores, Inc., 10th Dist. Franklin No. 13AP-447, 2013-Ohio-5607, ¶ 

20 (drawing an inference from a deduction that itself is purely speculative and 

unsupported by established fact violates Ohio law). The inference that Brown attempted 

to fire the weapon is based on the evidence that he took a shooting stance and aimed the 

handgun at the police officers and the parallel evidence indicating that there was an 

attempt to fire the handgun, as demonstrated through the firing-pin strike mark on the 

shell casing. There is no inference-stacking in this case, nor has Brown indicated what 

inference was based upon another. App.R. 16(A)(7). The third and fourth assignments 

of error are overruled. 

{¶20} In the fifth assignment of error, Brown claims that the sentence imposed on 

the repeat violent offender specification is not supported by the record because Brown did 

not commit a homicide, was not a violent sexual predator, and committed no crimes that 

resulted in actual physical injury or serious psychological injuries to the victims. In 

support of his argument, Brown cites “A Plan for Felony Sentencing in Ohio: A Formal 

Report of the Ohio Criminal Sentencing Commission (July l, 1993),” a document that is 
not in the appellate record and is not binding authority. The entirety of Brown’s 

argument and analysis in favor of reversing the sentences imposed on the repeat violent 

offender specifications is as follows: 

In this case, neither of the two victims could definitively state that 

Appellant either pointed his gun at one of them in particular, pulled the 

trigger, or tried again to shoot one of them as he was running away. 

Appellant also did not attempt to fire his weapon at any of the other officers 

chasing him. Because the record does not contain clear and convincing 

evidence that the sentences imposed in this case for Appellant’s convictions 

on the RVOs are supported by the record, his sentences on those 

specifications should be vacated. 

In support of appellate review, Brown cites R.C. 2953.08(G)(2) and State v. Marcum, 146 

Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23. 

{¶21} Brown has not demonstrated error under R.C. 2953.08(G)(2) or Marcum. 

Marcum authorizes felony sentencing review of sentences that is not expressly provided 

under R.C. 2953.08(G)(2). Marcum at ¶ 23. As the Ohio Supreme Court noted, “some 

sentences do not require the findings that R.C. 2953.08(G) specifically addresses.” Id. 

If that is the case, then “it is fully consistent for appellate courts to review those sentences 

that are imposed solely after consideration of the factors in R.C. 2929.11 and 2929.12 

under a standard that is equally deferential to the sentencing court.” Id. Marcum is 

inapplicable in this case because the repeat violent offender specification sentence being 
challenged was imposed after the trial court made the findings specifically discussed in 

R.C. 2953.08(G)(2)(a). 

{¶22} R.C. 2953.08(G)(2) provides that an appellate court 

may take any action authorized by this division if it clearly and 

convincingly finds either of the following: (a) That the record does not 

support the sentencing court’s findings under division (B) or (D) of section 

2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of 

section 2929.20 of the Revised Code, whichever, if any, is relevant; (b) 

That the sentence is otherwise contrary to law. 

In this case, the sentence imposed on the repeat violent offender specification was 

imposed under R.C. 2929.14(B)(2)(a); and under R.C. 2929.14(B)(2)(e), the trial court is 

required to state its findings on the record. Further, our review under R.C. 

2953.08(G)(2) is not to determine whether the record clearly and convincingly supports 

the sentences imposed, as Brown contends, but whether we can clearly and convincingly 

find that the trial court’s findings are not supported by the record. 

{¶23} Brown has not identified or discussed the trial court’s findings under R.C. 

2929.14(B)(2)(a), let alone has he presented any arguments or analysis upon which we 

could clearly and convincingly find that the trial court’s findings are not supported by the 

record. App.R. 16(A)(7). Instead, Brown asserts cursory arguments claiming that his 

convictions for both counts of felonious assault are not based on sufficient evidence 

because the state failed to prove that Brown attempted to shoot at any particular officer or 

attempted to fire the handgun in general. In light of our rejection of that same argument 
as it pertains to the sufficiency of the evidence, the fifth assignment of error is likewise 

overruled. 

{¶24} Brown’s convictions are affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. The 

court finds there were reasonable grounds for this appeal. 
[Cite as State v. Brown, 2018-Ohio-3674.]

It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. The defendant’s conviction having 

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court 

for execution of sentence. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

SEAN C. GALLAGHER, PRESIDING JUDGE 

LARRY A. JONES, SR., J., and 

KATHLEEN ANN KEOUGH, J., CONCUR