Appeal from Union County Common Pleas Court Trial Court No. 11 CR 0032
Jeffrey M. Gamso for Appellant
David W. Phillips and Melissa A. Chase for Appellee
(¶1} Defendant-Appellant, Scott W. Brofford ("Mr. Brofford"), appeals the judgment of the Union County Court of Common Pleas, after a jury found him guilty of felonious assault, assault, complicity to commit felonious assault, criminal damaging, and two counts of aggravated menacing. On appeal, Mr. Brofford contends that the trial court committed several errors: failing to give the appropriate response to a question from the jury; allowing a state's witness to give opinion testimony; excluding the testimony of a defense witness; and sentencing Mr. Brofford separately for allied offenses of similar import. He also claims that he was denied effective assistance of counsel. For the reasons set forth below, the judgment is affirmed.
(¶2} On February 28, 2011, the Union County Grand Jury issued a two-count indictment charging Mr. Brofford with felonious assault, alleging that he caused serious physical harm to Jonathan P. Kelley ("Jonathan" or "Jon"), and complicity to commit felonious assault, in violation of R.C. 2903.11. (A)(1). Both were felonies of the second degree. Four additional counts were added on August 22, 2011, by way of a Bill of Information: criminal damaging or endangering, in violation of R.C. 2909.06(A)(1), a misdemeanor of the second degree; aggravated menacing in violation of R.C. 2903.21(A), a misdemeanor of the first degree; assault, in violation of R.C. 2903.13(A); and aggravated menacing, in violation of R.C. 2903.21(A), a misdemeanor of the first degree. All counts arose out of an incident which occurred on the Broffords' property on January 23, 2011, Mr. Brofford's son, Wesley Brofford, was also indicted on that date for felonious assault arising from the same incident. Both cases were tried together in a four-day jury trial on August 23-26, 2011.
(¶3} The incident giving rise to the charges began late on the evening of January 22, 2011, when 17-year-old Jonathan was hanging out and drinking beer with two of his friends, 18-year-old Luke Parrish ("Luke"), and 20-year-old Michael Gayle ("Michael"). Also present were two girls, Ashley Winterstellar ("Ashley") and Taylor Watkins ("Taylor").
(¶4} Late that evening, Jonathan received a call from his stepbrother telling him that he had recently had an altercation with Nick Sparks ("Nick") and some of Nick's friend. Nick and these friends were also friends of Jonathan, and Jonathan was upset about what had occurred. Jonathan called Nick, who was at the Broffords' house. Nick and several of his friends had also been hanging out together and drinking beer and playing beer pong at the Broffords' house, even though they were also underage. The conversation did not go well and apparently Nick told Jonathan to come out to the Broffords' so they could "settle" things, or perhaps so that Nick could beat him up. (Tr. 8/23, pp. 36, 202) Jonathan was "pretty fired up" after the conversation, and wanted to go out to the Brofford house to either "confront" Nick, or "to fight" with him, according to the testimony of the different witnesses. (Tr. 8/23, p. 40; Tr. 8/24, pp. 35, 175).
(¶5} Jonathan, Luke and Michael drove to the Broffords' place in Jonathan's Honda Civic (owned by Jonathan's mother). While they were driving, Jonathan made several more calls to Nick to let him know they were coming. (Tr. 8/23, pp. 37, 39) Ashley and Taylor also drove to the Broffords' in Ashley's vehicle and parked near the Honda.
(¶6} As soon as they arrived at the Brofford place, Jonathan got out of his car, and Nick came out of the house, followed by a number of the other young men and women who were at the Brofford house, including Tory Stover ("Tory"), Devon Kiss ("Devon"), William Converse ("Billy"), and 18-year-old Wesley Brofford.
(¶7} Jonathan and Nick yelled at each other and exchanged words at first. Then Jonathan pushed Nick, who then punched Jonathan. They traded punches for a while until Nick tackled Jonathan to the ground. (Tr. 8/23, pp. 45-46)
(¶8} While Jonathan was on the ground with Nick on top of him, Nick kept pummeling Jonathan, and one or more of the others battered and kicked Jonathan numerous times around his head and face. The witnesses who testified sometimes presented varying details about the fight and about whom they actually saw kicking Jonathan. Often the discrepancies were due to their location and what they could see, the fact that there was a lot of commotion and activity going on in multiple locations over a fairly short period of time (5-10 minutes), and because they were also preoccupied with their own situation.
(¶9} Jonathan, for instance, testified that he didn't see everyone who kicked him because he was otherwise trying to cover his face to protect himself, and he was reeling from the effects of the hard blows. (Tr. 8/23, pp. 47-48) He did see Tory kick him. He knew he was surrounded by Wesley, Mr. Brofford, and others, and felt himself getting kicked multiple times. (Id. at 50) He remembers Tory kicking him and saying "this is what you get for coming out here sticking up for your brother." (Id. at 49) He also testified that Mr. Brofford "was up in my face saying 'this is what you get.'" (Id.) He said that Mr. Brofford was the last person to kick him "right before I got up is when - is when I got kicked the hardest." (Id at 111) When Jonathan got up, he remembers seeing Wesley Brofford and Mr. Brofford there. (Id at 50)
(¶10} Luke testified that he was trying to tell Billy and Tory and some of the others to stay out of the fight and let it be a "one-on-one." (Tr. 8/23, p. 148) However, Mr. Brofford then came up and hit Luke in the head, and was chasing him around the car, trying to get to him, while yelling and threatening him. (Id. at 148-150.) Luke also testified that he saw a group standing around Jonathan and kicking him. He didn't see some of the bystanders kicking Jonathan, but he testified that he was "100 percent sure that [Mr. Brofford], Wes Brofford, and Tory Stover were." (Id. at 154) He saw more people there, but didn't see if they were actually kicking him. (Id. at 169)
(¶11} Michael testified that he saw Tory kick Jonathan first, but then he also saw Nick, Mr. Brofford, and Wesley Brofford kick him too. (Id at 207) He also heard Mr. Brofford yell "get him" and "beat his ass and make sure they never come out here again." (Id at 206) Michael testified that he believed Mr. Brofford kicked Jonathan more than once, but he only actually saw him kick him one time. "I witnessed [Jonathan] laying on his face with his face turned towards Mr. Brofford. And Mr. Brofford kind of like speed walking up to him and kicked him in his face. Flat out in front in his face, not the side of his head, not in the back of his head. He kicked him in his face. * * *" (Id at 210) Michael testified that he was not involved in the fight, other than to try to break it off when he pulled Nick off Jonathan. (Id. at 209; Tr. 8/24, p. 19)
(¶12} Ashley testified that she saw Mr. Brofford hit Luke and chase him around the car, and that Mr. Brofford was also standing by Jonathan and yelling and encouraging them to "beat his ass." (Tr. 8/24, pp. 168-169) She testified that she saw Billy, Mr. Brofford and Wesley kicking Jonathan. (Id. at 170)
(¶13} Devon testified that he had seen Tory, Billy, and Wesley Brofford cheering Nick on to win, and that he had seen Mr. Brofford go up to Luke and hit him on the head when Luke tried to get the others to let it be a "one-on-one" fight. (Tr. 8/24, pp. 213-214) Devon testified that he heard Mr. Brofford telling everyone to get off his property and telling Nick to "whop his ass." (Id. at 215)
(¶14} Devon then went back inside, thinking the fight was over after Nick was pulled off Jonathan, but when he turned and stepped onto the porch to go back outside, he said that he saw "they were all in a group, and their legs were coming back and I heard a horrible sound and they were all kicking him." (Id at 217)
Q. Who is "they, " Devon?
A. Wes Brofford, Tory Stover, Billy Converse, [and] [Mr. Brofford] made his way over to the pile at this time. And I seen all them kicking him.
* * *
Q. And you were able to hear - and what did the sound sound like?
A. It was the worst sound of my life. It was a thud and over and over and I could hear it. Once I stepped back inside, I could still hear that sound. * * *
(Id. at 217-218)
(¶15} When the fighting stopped, Jonathan's friends were very concerned about his condition and they carried him to his car in order to take him to the hospital. They were delayed in leaving because the keys had been lost in the melee. While they were attempting to leave, Mr. Brofford was yelling at them to get off his property. Several testified that Mr. Brofford threatened to get his gun. Also, while they were trying to leave, Mr. Brofford hit the Honda's spoiler and broke it, while others were kicking at the car. Someone broke off the side-view mirror.
(¶16} They were unable to locate Jonathan's keys, so Luke, Michael, Ashley and Taylor then helped get Jonathan into Ashley's car and they drove away. Luke called his father on the way and arrangements were made to meet an EMT ambulance at a nearby parking lot. They met with the paramedics and Jonathan was transported to the emergency room.
(¶17} Dr. Matthew Sanders, the emergency room physician who treated Jonathan, testified that Jonathan had abrasions, lacerations and contusions and bruising, with swelling and with dried blood about the face. (Tr. 8/24, p. 74; Ex. 43) Fortunately, there was no loss of consciousness and there were no fractures. (Tr. 8/24, pp. 82-83) The CT scan did not show any intracranial hemorrhage or edema. (Ex. 43) Jonathan was treated and given pain medications in the hospital and told to continue to take them to combat the pain. He was then released and instructed to follow-up with his own physician.
(¶18} There was also testimony from two other physicians who treated Jonathan after the initial ER visit. Dr. Jennifer Morrison, an ophthalmologist, testified about his appearance and the condition of his eyes, and the fact that this trauma to his eyes puts him at a slightly greater risk for complications as he grows older. (Ex. 45) Dr. Justin Krueger was a specialist in pediatrics and internal medicine who also treated Jonathan and testified at the trial as to in the injuries that he observed. (Tr. 8/25, pp. 5-126; Ex. 44)
(¶19} Dr. Timothy Treece, a plastic surgeon with considerable experience in facial and head injuries, testified as an expert witness on behalf of the defense. (Tr. 8/25, 142-179; Defendants' Ex. 8) Dr. Treece testified that, although Jonathan's injuries may have been traumatic to look at, they were not major life-threatening injuries. (Tr. 8/25, p. 150) He testified that he believed the injuries were more consistent with punching, rather than kicking, but acknowledged he couldn't say for certain if an injury came from a punch or a kick. (Id, pp. 157; 171)
(¶20} In addition to the above witnesses, the jury heard testimony from Luke's father, Jonathan's mother, a BCI witness (some blood that was retrieved from Wesley Brofford's shirt contained DNA consistent with Jonathan's DNA), and Deputy Matthew Henry, from the Union County Sherriff' s Department, who investigated the matter. A tape was also played for the jury of Deputy Henry's initial interview with Mr. Brofford and Wesley, wherein they both denied any involvement in the incident, and claimed that they had not even been outside. (Ex. 47) Mr. Brofford had also told the deputy that Nick and several of the others had left much earlier in the evening, and he denied knowledge of any physical fight. (Id.)
(¶21} After hearing all of the evidence, the jury returned guilty verdicts for both Mr. Brofford and Wesley. The jury found Mr. Brofford guilty of five of the six counts - all except for misdemeanor count of aggravated menacing pertaining to Michael. The trial court sentenced Mr. Brofford to four years in prison on the felonious assault charge, four years on the complicity charge, and six months on each of the remaining three misdemeanor charges. All sentences were ordered to be served concurrently, for a total of four years in prison. He was also fined $5, 000 and ordered to pay restitution. The trial court granted the Appellants' motion to stay the sentences and to release Wesley Brofford and Mr. Brofford on bond, pending the outcome of their appeals.
(¶22} It is from this judgment that Mr. Brofford now appeals,  raising the following five assignments of error for our review.
First Assignment of Error
The trial court abused its discretion when in response to a question from the jury during deliberations regarding whether they had to find the defendant guilty, it refused a defense request simply to say "no."
Second Assignment of Error
The trial court abused its discretion when it ruled that a state's witness would be allowed to give opinion testimony as an expert although the State did not provide a report as required by Crim.R. 16(K)
Third Assignment of Error
Insofar as counsel's failure to renew his objection to opinion testimony from Dr. Sanders at the time the testimony was given may be deemed to have waived the error absent plain error, counsel's representation was constitutionally ineffective and deprived Mr. Brofford of his rights under the Sixth and Fourteenth Amendments to the United States Constitution.
Fourth Assignment of Error
The trial court committed error when it excluded testimony of Jennifer Ruffing regarding a prior inconsistent statement by State's witness Devon Kiss.
Fifth Assignment of Error
The trial court committed error when it sentenced Mr. Brofford for both felonious assault and complicity to felonious assault as they are allied offenses of similar import.
First Assignment of Error – Response to Jurors' Inquiry
(¶23} Mr. Brofford claims that the trial court erred in the manner in which it responded to questions from the jury. He maintains that the trial court should have answered the first question with a simple "no, " and that the trial court's answer did nothing to assist a jury that did not understand the jury instructions.
(¶24} After deliberating for a while, the jury submitted the following questions to the trial court:
If we agree that it is serious physical harm and we do agree that Mr. Brofford did kick [Jonathan Kelly], does that make ...