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State v. Brown

Court of Appeals of Ohio, Eighth District

June 27, 2013

STATE OF OHIO PLAINTIFF-APPELLEE
v.
TONY BROWN DEFENDANT-APPELLANT

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-560590

ATTORNEY FOR APPELLANT Patrick E. Talty Suite.

ATTORNEYS FOR APPELLEES Timothy J. McGinty Cuyahoga County Prosecutor, Adrienne E. Linnick Assistant Prosecuting Attorney The Justice Center

BEFORE: Rocco, J., Boyle, P.J., and Kilbane, J.

JOURNAL ENTRY AND OPINION

KENNETH A. ROCCO, JUDGE.

{¶ 1} Defendant-appellant Tony Brown appeals his convictions for aggravated burglary, aggravated robbery, kidnapping, aggravated theft, and having weapons while under disability in connection with a home invasion. Brown argues that the state presented insufficient evidence of his participation in the home invasion and that his convictions are against the manifest weight of the evidence. In addition, Brown contends that, during her closing argument, the prosecutor mischaracterized the state's DNA evidence, depriving Brown of a fair trial. Having reviewed the record, we find no merit to Brown's arguments. For the reasons set forth below, Brown's assignments of error are overruled, and his convictions are affirmed.

{¶2} Brown's convictions arose out of an April 7, 2011 invasion of a home on Selwyn Road in Cleveland Heights. At the time of the incident, Desdemona Sanderfer resided at the home with her 18-year-old nephew, Cedric Sanderfer, and her two daughters, 20-year-old, Desirae Sanderfer, and 7-year-old, M.D. Several masked men, wielding guns, forced their way into the Sanderfer home, then rounded up the family and held them at gunpoint in the basement. The men demanded money and ransacked the house, looking for money they believed was hidden somewhere in the home. Brown's DNA was found on a piece of a torn T-shirt, believed to have been used by one of the intruders as a mask, which was discovered in the family's bathroom following the incident.

{¶3} The state's witnesses, which included all four family members, a family friend, a neighbor, multiple police officers, and several forensic experts, provided the following account of the incident and subsequent events that led to Brown's arrest and convictions.

{¶4} At approximately 7:00 a.m. on April 7, 2011, the home security system was disarmed, and Cedric went outside to the garage at the back of the house to get Desdemona's car, so he could drive her to work. As Cedric was sitting in the driver's seat, getting ready to start the car, the driver's-side door opened. Cedric testified that he saw four males with guns pointed at him, dressed in black, wearing black face masks and hoodies. The men grabbed his arms, pulled him out of the car, and dragged him into the house. The intruders forced him down into the basement where they tied his arms and legs with an electrical cord and forced him to lay on his stomach on the basement floor.

{¶ 5} Desdemona testified that she was in the dining room collecting her things, getting ready to leave for work, when several men entered the side door of the house, pointing guns at her, calling her names, and screaming at her to get down. Desdemona testified that the intruders were black males and wore black hoodies and white masks. The masks were made from a ripped white T-shirt that covered the bottom part of the intruders' noses, mouths, and necks, like scarves. Desdemona testified that she believed that there were a total of four intruders, but that she never had an opportunity to see them all together. The men took her down into the basement, bound her hands and feet, and forced her to lay on the basement floor facing the wall.

{¶6} Desdemona's daughters, Desirae and M.D., were upstairs in their mother's bedroom when they heard their mother call out, and they knew something was wrong. Desirae testified that she ran out of the bedroom to get a phone to call 911 and was intercepted by an intruder, a man wearing a black hoodie with a white, ripped T-shirt covering his nose and mouth like a scarf. The man placed a gun to Desirae's head and led the two girls downstairs into the basement, where they too were forced to lay on the basement floor with their heads turned toward the wall.

{¶ 7} While the family was in the basement, the intruders ransacked the home. The men demanded money, repeatedly asking the family "where the money was at, " and threatening to kill them if they did not cooperate. Desirae testified that after repeated threats, she offered to show the intruders where some money was located. One of the intruders took Desirae upstairs to her mother's bedroom where she located approximately $6, 000 or $7, 000 in a dresser drawer, which she gave to one of the men. Because she had not been fully dressed when the gunmen entered the home, Desirae asked if she could put on some clothes, and the intruder took her to her third floor bedroom so she could get dressed. Desirae testified that while she was getting dressed, another intruder joined them upstairs. When she was finished, she and the two intruders headed back downstairs. Desiree testified that when they reached the second floor, one of the men tripped over some clothes in the entryway of one of the second floor bedrooms. He dropped his gun, and his mask came off his face. Desirae testified that the intruder quickly picked up his gun and told Desirae to turn her head. She did as instructed and was returned to the basement.

{¶ 8} The incident ended when a family friend, Leslie Slocum, arrived at the house to make sure M.D. made it to school on time. Slocum testified that when she arrived at the house, she noticed that Desdemona's car was still in the garage, which was unusual. She honked the car horn several times. When she got no response, she exited the vehicle and went to the side door, calling for M.D.

{¶ 9} Slocum testified that as she reached for the doorknob, someone from inside the house grabbed her by the collar. At first believing it was Cedric, playing a joke, she grabbed back, and the man who grabbed her fell on top of her. Slocum testified that he was wearing a white mask with black printing on it. He pointed a gun at her, and she screamed. She heard three men run past her, and the man who had grabbed her got up and ran off as well. The intruders escaped with approximately $6, 000 to $7, 000 in cash, some jewelry, and the family's cell phones.

{¶ 10} The family members testified that when they heard Slocum at the side door, the intruders who had been in the basement went upstairs. They heard Slocum scream, then heard footsteps running out the side door. When they were certain the men had left, they untied themselves, and the family went upstairs and exited the house.

{¶ 11} In addition to testimony from Slocum and the Sanderfer family, the state presented testimony from the family's next door neighbor, Keith Nettles. He testified that when letting his dog out that morning, he heard a female voice in distress. He looked out his dining room window and saw three or four masked men with guns rushing out of the house, running toward a vehicle parked along the garage at the rear of the house. He testified that he was "almost sure" that he saw four men and was "certain" that they were all wearing "ski masks, " but could not provide a further description of the men, other than to state that he saw dark skin on one of the men's hands when he ran out of the house with his gun in the air. Nettles told his wife to call the police and then went outside where he met the family as they were exiting the house. The Cleveland Heights police arrived a few minutes later.

{¶ 12} The Cleveland Heights police took Desdemona, Cedric, Desirae, and Slocum down to the police station to give statements while they searched the house. The police gathered evidence, including over 75 fingerprints. Detective Josef Burghardt, the lead detective on the case, testified that of the fingerprints that were gathered at the home, only two small partial prints were suitable for comparison. Neither matched Brown. A pry bar, hat, and electric pencil sharpener (which had been reportedly used to tie up the Sanderfer family) were also taken from the scene and submitted for DNA testing.

{¶ 13} After several hours at the police station, the family returned home, and they, along with Slocum, began cleaning up and packing, preparing to leave the home. As the family was cleaning up, they found a piece of a ripped white T-shirt with black printing on it in the Jacuzzi tub in the second floor bathroom. There was conflicting testimony as to who first found the piece of the T-shirt in the tub. Desdemona testified that she thought she was the one who found it, but could not recall with certainty whether she or Slocum found the T-shirt. Slocum testified that she found it. Desirae testified that she could not recall who found it. Detective Decaro, who retrieved the T-shirt from the Sanderfer home two days after this incident, testified that Desirae told him that she was the person who found the T-shirt and, at his request, provided a written statement detailing where and when she found the T-shirt. Although there was some disagreement as to who first found the T-shirt, all three women testified that the ripped T-shirt was found in the tub the day of the incident and that they recognized it as one of the masks the intruders had been wearing during the incident. Desirae further testified that the T-shirt did not belong to the family, but rather, "came from the outside." Desdemona testified that she was the only one in the family who had bathed that morning and that she had taken a shower; no one had taken a bath.

{¶ 14} Desdemona called the Cleveland Heights police and notified them of their discovery. The piece of the T-shirt was placed into a plastic bag, and Detective Decaro picked up the T-shirt from the Sanderfer home on April 9, 2011, two days after the incident. It was thereafter submitted for DNA testing.

{¶ 15} Four forensic experts testified regarding the DNA testing conducted in the case. Justin Barnhart, a forensic scientist at the Bureau of Criminal Identification and Investigation ("BCI") collected the DNA sample from the T-shirt. He testified that when he received the "rag, " it was tied. He testified that he did not untie the T-shirt, but carefully swabbed all exposed areas of the T-shirt on both sides to collect a DNA sample. He also swabbed the other evidence the police had collected in the case, i.e., the pry bar, hat, and electric pencil sharpener, for DNA.

{ΒΆ16} Shawn Weiss, associate technical director of the forensic identity department of Lab Corp., extracted DNA from the sample collected by Barnhart and used it to develop a DNA profile. Weiss testified that the DNA profile showed a mixture from three or more then-unknown individuals. He further testified that the profile consisted of a major contributor, contributing 60 percent or more of the DNA, and at ...


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