Court of Appeals of Ohio, Second District, Montgomery
Appeal from Common Pleas Court) Trial Court Case No.
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Attorney for
KRISTIN ARNOLD, Attorney for Defendant-Appellant
1} Defendant-appellant, Robert E. Brown, Jr.,
appeals from his conviction in the Montgomery County Court of
Common Pleas after a jury found him guilty of one count of
felonious assault. In support of his appeal, Brown contends
that his trial counsel was ineffective in failing to request
a jury instruction on self-defense. For the reasons outlined
below, we agree with Brown's claim. Accordingly, the
judgment of the trial court will be reversed and remanded for
and Course of Proceedings
2} On March 15, 2016, the Montgomery County Grand
Jury returned an indictment charging Brown with one count of
felonious assault (serious harm) in violation of R.C.
2903.11(A)(1), a second-degree felony. The charge arose from
allegations that on November 23, 2015, Brown beat and
seriously injured DeShon Randolph while Randolph was visiting
Brown's girlfriend, Alicia Crutchfield, at her apartment.
Brown pled not guilty to the charge and the case proceeded to
a jury trial.
3} At trial, the State presented testimony from both
Crutchfield and Randolph. Crutchfield testified that Brown
was her boyfriend at the time of the altercation and that
they had been dating for about five or six months. Although
Crutchfield denied living with Brown, she testified that
Brown had a set of keys to her apartment and that he often
spent the night with her.
4} Randolph, a married man, lived four doors down
from Crutchfield's apartment. Both Randolph and
Crutchfield testified to being friends, but denied having a
romantic relationship with one another. Randolph testified
that prior to the altercation in question, he had never seen
Brown at Crutchfield's apartment and that he did not know
Crutchfield had a boyfriend.
5} With regards to the November 23, 2015
altercation, Crutchfield and Randolph testified that
Crutchfield called Randolph that evening and asked if he
wanted to come over to her apartment for some drinks.
Following the invitation, Randolph walked over to
Crutchfield's apartment and had two shots of liquor while
he and Crutchfield were upstairs in her bedroom talking and
listening to music. Both Crutchfield and Randolph claimed
that Crutchfield's four children were in the apartment
while Randolph was visiting and that nothing sexual was going
on between them.
6} After spending an hour and a half at
Crutchfield's apartment, Randolph testified that he went
to use the second floor bathroom, which is located next to
Crutchfield's bedroom and in front of the stairway that
leads down to the front door of Crutchfield's apartment.
When he exited the bathroom and started going down the
stairs, Randolph recalled someone hitting him on the left
side of his jaw. Randolph testified that he almost fell down
the stairs after being hit, but caught himself on the wall.
According to Randolph, the same individual continued to hit
him on the left side of his head near his eye, which caused
him to tumble down the stairway and hit the front door.
Randolph testified that he was able to catch a glimpse of his
attacker, but did not recognize him.
7} Following his fall down the stairs, Randolph
testified that his head and knees were hurting and that he
could not walk. Randolph claimed that he crawled to the
living room because the front door of Crutchfield's
apartment was locked. Randolph claimed the same individual
then approached him in the living room and hit him two more
times, once in the mouth and once near his left eye. Randolph
did not recall the attacker ever striking him in the legs.
8} After describing the attack, Randolph testified
that he left Crutchfield's apartment by crawling out the
back door. He claimed that someone helped him to his
apartment where he briefly discussed the attack with Officer
Jamie Luckoski of the Dayton Police Department. The following
day, the Dayton Police Department contacted Randolph and
showed him a photospread of possible suspects. When shown the
photospread, Randolph identified Brown as his attacker with
75 percent certainty. Randolph also identified Brown as his
attacker at trial.
9} Continuing, Randolph testified that he went to
Miami Valley Hospital for treatment after the attack.
Randolph was treated for a fractured kneecap and facial
injuries including a left orbital blow-out fracture (broken
bones beneath the eyeball) and a cheekbone fracture.
Randolph's attending physician, Dr. Derek Broering,
appeared at trial and testified regarding the severity of
Randolph's injuries. According to Broering,
Randolph's kneecap was broken in half. Broering testified
that this was a significant injury, as it disrupted the
function of Brown's leg and required surgery. Broering
testified that the facial fractures were considered mild and
did not require surgery. On cross-examination, Dr. Broering
indicated that he was unable to tell whether the left orbital
blowout fracture was a new or old fracture at the time he
10} Crutchfield also testified regarding the
altercation. Crutchfield testified that she was in her
bedroom when she initially saw Brown standing at the top of
the stairway. She claimed that she asked Brown "how you
doing?" and then observed a look in his eyes as if
something was wrong. Trial Trans., Vol. II (Sept. 14, 2016),
p. 223. Crutchfield claimed that Brown then handed her
15-year-old son a pizza he was carrying and told him to go
downstairs and feed his brothers and sisters. After that,
Crutchfield claimed that Brown started to punch Randolph at
the top of the stairway and accuse him of having sex with
her. According to Crutchfield, Brown initiated the
altercation and Randolph "never had a chance to defend
himself." Id. at 248.
11} Crutchfield also testified that she began
screaming for Brown to stop hitting Randolph and tried to
explain that she "never touched him." Id.
at 227. However, Crutchfield claimed that Brown "went
blank" and continued punching Randolph. Id. at
227-228. Crutchfield further testified that Brown began to
choke her when she attempted to leave her bedroom. When Brown
let her go, Crutchfield fled her apartment for a friend's
house because she feared Brown was going to hit her.
12} When Crutchfield returned to her apartment, she
spoke with Officer Luckoski who questioned her regarding the
altercation. Initially, Crutchfield reported that she saw no
altercation and did not mention the choking incident.
Crutchfield claimed that she did not report what she saw
because she was afraid of Brown and was under the influence
of alcohol. However, Crutchfield claimed that she eventually
provided officers with a picture of Brown from her cell phone
and provided the State with her observations of the
13} After the State rested its case, Brown testified
in his defense and provided an entirely different version of
events. Brown claimed that he lived with Crutchfield and that
on the night in question he came home from work to find
Crutchfield and Randolph upstairs in her bedroom standing
face to face. According to Brown, Randolph was not wearing a
shirt and Crutchfield was in her pajamas. Brown testified
that when Crutchfield saw him staring at her and Randolph,
she cursed and ran down the stairs. Brown claimed that he
followed Crutchfield to ask her what was going on, but she
fled the apartment in the direction of her best friend's
14} Thereafter, Brown realized that Randolph was
still upstairs where Crutchfield's children were
sleeping. As a result, Brown decided to go back upstairs to
check on the children and to tell Randolph to leave the
apartment. Brown testified that he had no intent to
physically fight Randolph. However, Brown claims that when he
reached the top of the stairway, Randolph tackled him,
causing him to fall backwards until he caught himself on the
handrail. Brown testified that he was confused and afraid
when Randolph tackled him. Brown thought Randolph was trying
to hurt him, so he began hitting Randolph. Brown claims that
Randolph fell down the stairway while they were tussling and
swinging at each other, and that he kept himself from falling
by grabbing the handrail.
15} After Randolph fell down the stairs, Brown
claimed that he went to check on Crutchfield's children.
Once he confirmed the children were okay, Brown went
downstairs and observed Randolph leaning against a wall in
the threshold of the kitchen and living room. At that point,
Brown noticed Randolph was "wobbly" and
"hobbling." Trial Trans., Vol. II (Sept. 14, 2016),
p. 270. Brown testified that he did not continue to fight
Randolph because Randolph was defenseless. Instead, Brown
cussed at Randolph and told him to "get the hell out of
the house." Id. at 269-270. Thereafter, Brown
left the apartment with Crutchfield's 15-year-old son to
look for Crutchfield.
16} Once all the evidence was submitted, Brown's
counsel requested a jury instruction on the lesser offense of
aggravated assault, which the trial court denied. Counsel did
not request a jury instruction on self-defense. Rather
counsel proceeded to defend Brown under the theory that the
State had failed its burden to prove the elements of
felonious assault. The jury, however, found Brown guilty of
the felonious assault charge. Following the guilty verdict,
the trial court sentenced Brown to a mandatory six years in
17} Brown now appeals from his conviction, raising a
single assignment of error for review.
18} Brown's sole assignment of error is as
THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN
TRIAL COUNSEL FAILED TO REQUEST A JURY INSTRUCTION FOR THE
AFFIRMATIVE DEFENSE OF SELF-DEFENSE AND BY FAILING TO HAVE
THE JURY INSTRUCTED ON SUCH ISSUE.
19} Under his single assignment of error, Brown
contends that his trial counsel rendered ineffective
assistance by failing to request a jury instruction on
20} In order to succeed on an ineffective assistance
claim, Brown must establish: (1) his trial counsel's
performance was deficient; and (2) the deficient performance
prejudiced him. Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), paragraph two of
the syllabus; State v. Bradley, 42 Ohio St.3d 136,
538 N.E.2d 373 (1989), paragraph two of the syllabus. The
failure to make a showing of either deficient performance or
prejudice defeats a claim of ineffective assistance of
counsel. Strickland at 697.
21} To establish deficient performance, Brown must
show that his trial counsel's performance fell below an
objective standard of reasonable representation. Id.
at 688; Bradley at 142. In evaluating counsel's
performance, "a court must indulge a strong presumption
that counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances,
the challenged action 'might be considered sound trial
strategy.' " Strickland at 689, quoting
Michel v. Louisiana,350 U.S. 91, 101, 76 S.Ct. 158,
100 L.Ed. 83 (1955). Therefore, "[a]n appellant is not
deprived of effective assistance of counsel when counsel
chooses, for strategic reasons, not to pursue every possible
trial tactic." State v. Patterson, 2d Dist.
Greene No. 2015-CA-57, 2016-Ohio-2750, ¶ 15, citing
State v. Brown,38 Ohio St.3d 305, 319, 528 N.E.2d
523 (1988). "Generally, the failure to request jury