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State v. Brown

Court of Appeals of Ohio, Twelfth District, Preble

June 12, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
LARRY E. BROWN II, Defendant-Appellant.

         CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS Case No. 15CR011706

          Martin P. Votel, Preble County Prosecuting Attorney, Kathryn West, for plaintiff-appellee.

          Repper, Pagan, Cook, Ltd., Christopher J. Pagan, for defendant-appellant.

          OPINION

          PIPER, J.

         {¶ 1} Defendant-appellant, Larry Brown, appeals his convictions in the Preble County Court of Common Pleas for rape, sexual battery, gross sexual imposition, and importuning.

         {¶ 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 violation").

         {¶ 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 ...


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