Court of Appeals of Ohio, Eleventh District, Geauga
Appeal from the Geauga County Court of Common Pleas, Case No.
2015 C 000116.
R. Flaiz, Geauga County Prosecutor, and Christopher J. Joyce,
Assistant Prosecutor, (For Plaintiff-Appellee).
Gallick, (For Defendant-Appellant).
R. WRIGHT, J.
Appellant, Joseph Rosebrook, appeals his convictions for
aggravated murder and kidnapping with a firearm specification
after he hired another to kill Daniel Carl Ott. We affirm.
In 2006, Rosebrook was already incarcerated for the attempted
aggravated murder of Curtis Frazier. Daniel Carl Ott was
supposed to kill Frazier, but he never did. Instead, Ott went
to the authorities, recorded his conversations with
Rosebrook, and agreed to testify against him. Ott's
cooperation with the police resulted in Rosebrook's
indictment and 2006 conviction.
While incarcerated, Rosebrook hatched a plan to have his
snitch killed, and he arranged for Chad South, a fellow
inmate who was soon to be released, to kill Ott. Upon
South's release, he broke into the home of the wrong
Daniel Ott and killed him.
Following a prolonged investigation, Rosebrook was indicted
and charged in 2015 with conspiracy to commit the aggravated
murder of Daniel E. Ott, two counts of aggravated murder, two
counts of kidnapping, and multiple specifications including a
A jury found Rosebrook guilty of all charges and following
merger of several offenses, he was sentenced to life in
prison without parole for aggravated murder in violation of
R.C. 2903.01(A) consecutive to ten years for kidnapping
Ott's girlfriend, in violation of R.C. 2905.01(A)(2),
consecutive to three years for the gun specification under
Rosebrook raises four assigned errors. His first argument
"The trial court erred in denying multiple requests for
a mistrial as appellant's constitutional rights to a fair
trial, under the confrontation clause, and to due process
This assigned error raises four sub-issues. First, Rosebrook
challenges testimony regarding his prior convictions. He also
takes issue with the impeachment of his
ex-sister-in-law's testimony via her prior inconsistent
statement to detectives. Third, he asserts that the
cumulative effect of these errors warrants a mistrial.
Finally, Rosebrook argues he was denied due process via the
denial of access to transcripts from his codefendant's
A trial court is entitled to broad discretion in considering
a motion for a mistrial, and our standard of review is
whether the trial court abused its discretion. State v.
Love, 7th Dist. Mahoning No. 02 CA 245, 2006-Ohio-1762,
2006 WL 890994, ¶95, citing State v. Schiebel,
55 Ohio St.3d 71, 564 N.E.2d 54 (1990) paragraph one of the
syllabus. The decision to grant a mistrial "is an
extreme remedy only warranted in circumstances where a fair
trial is no longer possible and it is required to meet the
ends of justice." State v. Bigsby, 7th Dist.
Mahoning No. 12 MA 74, 2013-Ohio-5641, 2013 WL 6797395,
¶58, citing State v. Jones, 83 Ohio App.3d 723,
615 N.E.2d 713 (2d Dist.1990). A mistrial will only be
granted when the substantial rights of a party are adversely
affected. State v. Lukens, 66 Ohio App.3d 794, 809,
586 N.E.2d 1099 (10th Dist.1990).
Rosebrook first asserts a mistrial was warranted in light of
the introduction of testimony as to his other criminal
offenses and resulting prejudice.
"In Ohio, the general rule is that 'the introduction
of evidence tending to show that a defendant has committed
another crime wholly independent of the offense for which he
is on trial is prohibited.'" State v.
Breedlove, 26 Ohio St.2d 178, 183, 271 N.E.2d 238
(1971), citing State v. Hector, 19 Ohio St.2d 167,
249 N.E.2d 912 (1969), paragraph one of the syllabus.
Exceptions exist, however, including those in Evid.R. 404(B),
"Other Crimes, Wrongs or Acts.
of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in
conformity therewith. It may, however, be admissible for
other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake
or accident. In criminal cases, the proponent of evidence to
be offered under this rule shall provide reasonable notice in
advance of trial, or during trial if the court excuses
pretrial notice on good cause shown, of the general nature of
any such evidence it intends to introduce at trial."
As for evidence of Rosebrook's prior convictions, the
state offered evidence of Rosewood's criminal past to
establish his motive to have Ott killed. Early on in the
case, the state informed the court and defense counsel of its
intent to use Rosewood's prior criminal record to show
his reason for having Ott killed. Rosewood opposed the
introduction of this evidence, and the issue was argued the
first day of trial, outside the jury's presence. The
issue again arose during Detective Keogh's testimony, and
the trial court issued its limiting instruction permitting
the testimony following a hearing, stating:
"I am going to allow it for that limited purpose, that
is, to show why the Detective investigated as he did and his
actions. I am going to limit it to the prior record connected
with this offense, and I will give a limiting instruction to
the effect of that evidence at the appropriate time that the
defense asks. And I will say that the evidence was received
only for a limited purpose. It was not received, and you may
not consider it, to prove the character of the Defendant in
order to show that he acted in conformity with that
"If you find that the evidence of the other wrongs or
acts is true and that you believe that the Defendant
committed them, you may consider that only for the purposes
of deciding whether it proves a motive, intent or purpose or
plan to commit the offense charged in this trial."
Rosebrook argues he was prejudiced via Detective Keough's
testimony that he was in prison based on auto theft charges.
As the state contends, defense counsel had already informed
the jury in its opening statements that Rosebrook was in
prison at the time the murder occurred. And the court
sustained the objection to any testimony regarding
Rosebrook's auto theft charges. Thereafter and during a
recess out of the jury's presence, the trial court denied
the request for a mistrial and advised the parties that it
would allow limited testimony that Rosebrook was in prison
for the attempted murder of Curtis Frazier because it
supplies the necessary motive under Evid.R. 404(B).
Keough testified, under objection, about the connection
between Rosebrook, Curtis Frazier, and Daniel Carl Ott,
stating that they were involved in a "chop shop" in
Logan County. "Upon the arrest of those individuals,
Curtis Frazier had agreed to testify against Joe Rosebrook.
And the information we received is that a hit had been placed
on Curtis Frazier by Joe Rosebrook. And he wanted Daniel Carl
Ott to do it.
"Daniel Carl Ott decided not to, and instead, went to
the authorities and then wore a wire when the details of the
hit were discussed.
"And that led to the conviction of Joe Rosebrook on the
attempted murder charge."
The trial court repeatedly cautioned the jury to limit its
consideration of this testimony as to Rosebrook's motive
here, not to show that he is a bad man who acted in
conformity with his bad character. Thus, there was no abuse
of discretion since this testimony was permissible under
Rosebrook also asserts that Keough's testimony during
which he relayed what an Ohio State Highway Patrolman told
him was inadmissible hearsay. Keough testified what the
patrolman told him in order to explain why Keough began
looking into Rosebrook as a suspect. Keough explained that
the patrolman was working as an investigator for the National
Insurance Crime Bureau and had been investigating a different
Daniel Ott, who was a ...