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State v. Rosebrook

Court of Appeals of Ohio, Eleventh District, Geauga

December 28, 2017

STATE OF OHIO, Plaintiff-Appellee,
JOSEPH ROSEBROOK, Defendant-Appellant.

         Criminal Appeal from the Geauga County Court of Common Pleas, Case No. 2015 C 000116.

          James R. Flaiz, Geauga County Prosecutor, and Christopher J. Joyce, Assistant Prosecutor, (For Plaintiff-Appellee).

          Donald Gallick, (For Defendant-Appellant).


          THOMAS R. WRIGHT, J.

         {¶1} 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.

         {¶2} 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.

         {¶3} 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.

         {¶4} 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 firearm specification.

         {¶5} 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 R.C. 2941.145(A).

         {¶6} Rosebrook raises four assigned errors. His first argument asserts:

         {¶7} "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 were violated."

         {¶8} 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 trial.

         {¶9} 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).

         {¶10} Rosebrook first asserts a mistrial was warranted in light of the introduction of testimony as to his other criminal offenses and resulting prejudice.

         {¶11} "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), which states:

         {¶12} "Other Crimes, Wrongs or Acts.

         Evidence 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."

         {¶13} 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:

         {¶14} "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 character.

         {¶15} "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."

         {¶16} 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).

         {¶17} 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.

         {¶18} "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.

         {¶19} "And that led to the conviction of Joe Rosebrook on the attempted murder charge."

         {¶20} 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 Evid.R. 404(B).

         {¶21} 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 ...

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