Court of Appeals of Ohio, Twelfth District, Preble
APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS Case No.
P. Votel, Preble County Prosecuting Attorney, Kathryn West,
Repper, Pagan, Cook, Ltd., Christopher J. Pagan, for
1} Defendant-appellant, Larry Brown, appeals his
convictions in the Preble County Court of Common Pleas for
rape, sexual battery, gross sexual imposition, and
2} The charges stem from allegations made by B.H.,
who alleged that Brown had kissed her, forced her to
masturbate him, and forced her to perform fellatio on him
when she was 11 and 12 years old. According to B.H.,
Brown's sexual abuse occurred at a farm owned by a family
friend when she and Brown would be there working for the
farm's owner. B.H. recorded some of her thoughts about
the sexual abuse in a journal, which was later found and read
by her mother. B.H. also told her mother and grandmother
about the sexual abuse after it occurred.
3} Brown was indicted, and pled not guilty. After
waiving the right to a jury trial, Brown was tried by the
court during a bench trial. The trial court found Brown
guilty on all charges. After merging the other counts into
the rape charge, the court sentenced Brown to a term of ten
years to life in prison. Brown now appeals his convictions
and sentence, raising the following assignments of error.
4} Assignment of Error No. 1:
5} THE TRIAL COURT ERRED TO THE PREJUDICE OF
APPELLANT WHEN IT DID NOT GRANT HIS MOTION FOR A NEW TRIAL.
6} Brown argues in his first assignment of error
that the trial court should have granted him a new trial
based on a Brady violation by the state.
7} According to Crim.R. 33(A), a new trial may be
granted "for any of the causes affecting
materially" the defendant's substantial rights. Two
of those causes include "(1) irregularity in the
proceedings, or in any order or ruling of the court, or abuse
of discretion by the court, because of which the defendant
was prevented from having a fair trial, " and "(3)
accident or surprise which ordinary prudence could not have
guarded against." The decision to grant or deny a motion
for a new trial is within the sound discretion of the trial
court, and will not be reversed absent an abuse of that
discretion. State v. Ruhlman, 12th Dist. Butler No.
CA2005-05-125, 2006-Ohio-2137. An abuse of discretion
"connotes more than an error of law or judgment; it
implies that the court's attitude is unreasonable,
arbitrary, or unconscionable." State v. Adams,
62 Ohio St.2d 151, 158 (1980).
8} Brown argues that he was entitled to a new trial
because he was surprised and the proceedings were irregular
where the victim alleged for the first time at trial that an
instance of sexual abuse occurred at a site other than the
farm. While Brown argues on appeal that such testimony
constituted a Brady violation, we need not address
the matter as such, given that Brown moved for a new trial,
but did not argue a Brady violation to the trial
court in his motion. Instead, Brown argued only that the
information about a second location was not disclosed before
trial, and as such, Brown was unable to prepare a defense or
cross-exam the victim on the point. Brown, however, never
alleged that the victim's statement was material, or that
the results of his trial would have been different, as is
required pursuant to the Brady standard. Brady
v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963).
9} Moreover, and even if Brown properly argued a
Brady violation in the trial court, we note the
information regarding an additional location was, in fact,
addressed at trial, and as such, could not form the basis of
a Brady claim. See State v. Hanna, 95 Ohio
St.3d 285, 2002-Ohio-2221, ¶ 82 (denying Brady
claim where the evidence in question "was presented
during the trial [and not after the trial as in
Brady]" so that "no Brady
violation exists") (Emphasis sic); State v.
Payne, 10th Dist. Franklin No. 09AP-107, 2010-Ohio-1018,
¶ 31. ("if the evidence is disclosed
during the trial, there is no Brady
violation") (Emphasis sic); and State v.
Clarke, 12th Dist. Butler No. CA2015-11-189,
2016-Ohio-7187, ¶ 40 ("However, a Brady
violation occurs only where suppressed exculpatory evidence
is discovered after trial. * * * Even if the evidence is
disclosed during the trial, there is no Brady
10} If a possible Brady violation or a
failure of discovery is first determined during trial, the
proper remedy is a motion for an order of continuance
pursuant to Crim. R. 16. State v. Brown, 2d Dist.
Montgomery No. C.A. Case No. 12949, 1992 Ohio App. LEXIS 4991
(Sept. 30, 1992). Absent a showing that a continuance or
other order, such as a mistrial, would remedy the prejudice
concerned, a failure to ...