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State v. Brown

Court of Appeals of Ohio, Second District, Montgomery

September 1, 2017

STATE OF OHIO Plaintiff-Appellee
v.
ROBERT E. BROWN, JR. Defendant-Appellant

         (Criminal Appeal from Common Pleas Court) Trial Court Case No. 2016-CR-15

          MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Attorney for Plaintiff-Appellee

          KRISTIN ARNOLD, Attorney for Defendant-Appellant

          OPINION

          WELBAUM, J.

         {¶ 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 further proceedings.

         Facts 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 examined Randolph.

         {¶ 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 altercation.

         {¶ 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 house.

         {¶ 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 prison.

         {¶ 17} Brown now appeals from his conviction, raising a single assignment of error for review.

         Assignment of Error

         {¶ 18} Brown's sole assignment of error is as follows:

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 self-defense.

         {¶ 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 ...


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