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State v. Brewer

Court of Appeals of Ohio, Eleventh District, Lake

July 22, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
NATHAN BREWER, Defendant-Appellant.

          Criminal Appeal from the Willoughby Municipal Court, Case No. 2018 CRB 01440.

          J. Jeffrey Holland and DanaMarie Kristyna Pannella, Holland and Muirden, (For Plaintiff-Appellee).

          Christopher J. Boeman, (For Defendant-Appellant).

          OPINION

          MATT LYNCH, J.

         {¶1} On March 7, 2018, Humane Agent, Leanne Pike, filed a Complaint in Willoughby Municipal Court against Nathan Brewer, charging him with two counts of Cruelty against Companion Animals, a misdemeanor of the first degree in violation of R.C. 959.131(B) (Count 1) and a misdemeanor of the second degree in violation of R.C. 959.131(D)(1) (Count 2).

         {¶2} On May 30, 2018, Brewer was arraigned and entered a plea of not guilty.

         {¶3} Brewer was tried before a jury on October 23, 2018. The following testimony was given on behalf of the prosecution:

         {¶4} Lee Stitt, a case worker for Signature Health, visited a client, Amanda Henry, at her home on 31507 Royalview Drive, Willowick, on March 12, 2018. Stitt met with Henry and Brewer in the living room while their child was eating potato chips off a table. A dog, Majestic, was sitting near Stitt. During the meeting, the dog took a chip from the child's hand. Brewer jumped up and punched the dog with a closed fist hard enough so that it yelped. The dog cowered, and Brewer grabbed it by the collar or nape of the neck. He dragged the dog to the back of the home. Although she could not see the dog, she heard "violent movement" for thirty to forty-five seconds. Brewer was swearing at the dog which was yelping and whining and crying like it was in pain. Brewer returned to the living room. Stitt concluded the appointment early and contacted the Lake County Humane Society.

         {¶5} Leanne Pike, a Lake County Humane Agent, responded to Stitt's call. Pike noted that Brewer had some history of domestic violence and that there is a correlation between domestic violence and animal cruelty. On March 28, Pike visited the Willowick residence. Brewer answered the door. Pike explained that she had received a complaint that someone was abusing a dog at the house. Brewer responded that it was not true and that she must have the wrong address. Pike asked if Brewer had a dog. Brewer did not answer. Pike asked if he was Nathan Brewer and he replied, "bye," and slammed the door in her face. Pike returned to her office and found an angry voice mail from Brewer. The message was that some bitch had shown up at his house accusing him of abusing his dog and he demanded to know who had made the complaint.

         {¶6} A few days later, a woman, identified as having a "close relationship" with Brewer's mother, arrived at Pike's office with concerns about his treatment of the dog and reported that the dog had been injured on an earlier occasion. Pike then contacted Brewer's mother who confirmed the earlier injury.

         {¶7} On April 10, Pike obtained a search warrant and went to the residence accompanied by four police officers. Pike impounded the dog and secured it in a van. Brewer tried to approach the van but was deflected by one of the officers. Pike then entered the home to check on the welfare of other, reptilian animals kept at the home. Brewer also reentered the home swearing, yelling, and calling her names until she completed her investigation. The dog was examined but no injuries were discovered.

         {¶8} The jury found Brewer guilty of both counts of Cruelty against Companion Animals.

         {¶9} On October 30, 2018, the municipal court imposed a $100 fine and 180 days in jail (165 suspended) for Count 1 and a $100 fine and 90 days in jail (25 suspended) for Count 2 in addition to 24 months of Community Control Sanctions.

         {¶10} On November 29, 2018, Brewer filed a Notice of Appeal. On appeal, he raises the following assignments of error:

         {¶11} "[1.] The State's comments during opening statement referencing Mr. Brewer's expected testimony violated Mr. Brewer's Fifth Amendment right against self-incrimination."

         {¶12} "[2.] Mr. Brewer was denied his Sixth Amendment right to effective assistance of counsel when Defense Counsel did not object a single time after the State repeatedly introduced inadmissible and prejudicial testimony against him."

         {¶13} In his first assignment of error, Brewer argues the prosecutor violated his Fifth Amendment right against self-incrimination by "set[ting] up the expectation in the jury's mind that Mr. Brewer would be testifying," thereby "negat[ing] the Defendant's constitutional right not to testify." Appellant's brief at 12.

         {¶14} "Comment by the trial court or by the prosecutor upon the failure of an accused to testify in a criminal proceeding against him violates the self-incrimination clause of the Fifth Amendment made applicable to the states by the Fourteenth Amendment." State v. Lynn, 5 Ohio St.2d 106, 214 N.E.2d 226 (1966), paragraph one of the syllabus. Such comments are considered as a type of prosecutorial misconduct. See, e.g., State v. Vaughn, 11th Dist. Ashtabula No. 2018-A-0045, 2019-Ohio-268, ¶ 37. The Ohio Supreme Court has described the relevant inquiry as "whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify." (Citation omitted.) State v. Ferguson, 5 Ohio St.3d 160, 162-163, 450 N.E.2d 265 (1983); State v. Webb, 70 Ohio St.3d 325, 328-329, 638 N.E.2d 1023 (1994). The standard of review is whether the prosecutor's misconduct has denied the accused the fundamental right to a fair trial. State v. Iacona, 93 Ohio St.3d 83, 104, 752 N.E.2d 937 (2001).

         {¶15} Despite having knowledge that Brewer would not be testifying at trial, the prosecutor stated as follows during opening argument:

We are saying under count number one, the first count, we are saying that the defendant knowingly committed an act of cruelty, unjustifiable, unnecessary causing pain. But, we expect the defendant to say, you know what, I was just disciplining the dog. That's what it was, it was a discipline. And if I went too far, okay, but I'm a great guy and I just maybe went a little too far. If that's what you think, the[n] we have a second charge that's negligence, which is a substantial lapse of due care. If you believe, if they advance the story that the defendant was just engaging in some kind of reasonable kind of training and discipline for his animal and you think he went overboard a little bit, that's negligence folks, if it caused unnecessary or unjustifiable pain or suffering. That's why there are two charges.

         {¶16} Brewer maintains that the prosecutor's statement before the jury "to expect Mr. Brewer to testify and explain his actions knowing that the Defendant would not be testifying violated the Defendant's constitutional right not to testify in the same way that a comment in closing pointing out that the Defendant did not testify would be a violation of Defendant's constitutional right not to testify." Appellant's brief at 13. We disagree.

         {¶17} The prosecutor's reference to what he expected Brewer "to say" rather than what he expected the defense "to argue" was not manifestly intended to create the impression that he would be testifying so that his subsequent failure to testify would be impermissibly construed by the jury as evidence of his guilt. In context, the prosecutor was merely explaining the difference between the two counts of the Complaint. Almost immediately, the prosecutor clarified that the defense that Brewer was disciplining the dog was a story that "they," i.e. the defense, might advance as a justification for his actions.

         {¶18} In fact, this is the defense that counsel for Brewer advanced during his opening statement:

So you're going to hear then about a large, powerful Pitbull, about a year old, and how this animal goes up to a two-year-old child with curly brown hair and steals food from her [sic]. This is certainly not appropriate behavior, not behavior that Nathan wanted to see recurring over and over again. So he attempted to remedy the situation.

         {¶19} Also significant is the fact that the prosecutor's comments took place during opening, rather than closing, argument. No reference to Brewer's failure to testify was made in summation and no suggestion was made that the defense failed to offer evidence in support of the theory that Brewer was disciplining the dog. The prosecutor's reference as to what he expected Brewer "to say" remained an isolated comment made in the course of explaining the charges rather than in argument as to what the evidence at trial proved or failed to prove.

         {¶20} The first assignment of error is without merit.

         {¶21} In the second assignment of error, Brewer argues that he received constitutionally ineffective assistance of counsel in violation of the Sixth Amendment. He asserts "the State (1) repeatedly asked leading questions and (2) presented inadmissible hearsay testimony, (3) presented inadmissible opinion testimony, (4) presented inadmissible testimony regarding prior bad acts, and (5) presented inadmissible expert witness testimony, over and over, without [a single] objection by Defense Counsel." We agree.

         {¶22} To reverse a conviction for ineffective assistance of counsel, the defendant must prove "(1) that counsel's performance fell below an objective standard of reasonableness, and (2) that counsel's deficient performance prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding." State v. Madrigal, 87 Ohio St.3d 378, 388-389, 721 N.E.2d 52 (2000), citing Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

         {¶23} In reaching the conclusion that trial counsel's performance deprived Brewer of a reliable or fundamentally fair trial proceeding, we have recourse to the doctrine of cumulative error. "Although violations of the Rules of Evidence during trial, singularly, may not rise to the level of prejudicial error, a conviction will be reversed where the cumulative effect of the error deprives a defendant of the constitutional right to a fair trial." State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987), paragraph two of the syllabus. This court has recognized that "[application of the doctrine is not limited to violations of the Rules of Evidence." State v. Burke, 11th Dist. Trumbull Nos. 2018-T-0032 and 2018-T-0035, 2019-Ohio-1951, ¶ 141, citing State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶ 257. We offer no opinion as to whether any of the specific instances of ineffective assistance discussed below merits reversal of Brewer's convictions. Rather, our holding rests on their cumulative effect.

         {¶24} Also significant to the issue of trial counsel's performance is the fact that, on the day of trial, counsel filed a Motion in Limine seeking to exclude evidence of Brewer's "criminal history" and "alleged other bad acts," and, in particular, "[a]ny reference to any vet visits not stemming from * * * the March 12, 2018 incident." The Motion was argued prior to the commencement of trial. The court refrained from making definite rulings on counsel's requests. The court acknowledged that, in the presentation of the State's case in-chief, the prosecutor was "limited to the date in question * * * unless there is something in the course of the investigation that's relevant to that particular [i.e., another] date." The court emphasized, however, that "I can't rule on it until it starts coming in." Again, in considering the admissibility of Brewer's prior bad acts, the court reiterated "I think I'm going to have to hear how it comes in, what exactly is said before I can rule on it." It is well-established that a ruling on a motion in limine does not preserve the record for appeal and that it is necessary to object and/or proffer as appropriate "when the issue is actually reached and the context is developed at trial" (Citation omitted.) State v. Grubb, 28 Ohio St.3d 199, 203, 503 N.E.2d 142 (1986). Counsel for Brewer did not raise any objections at trial.

         Leading Questions

         {¶25} "Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony." Evid.R. 611(C). "A leading question is 'one that suggests to the witness the answer desired by the examiner.'" (Citation omitted.) State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 138; State v. D'Ambrosio, 67 Ohio St.3d 185, 190, 616 N.E.2d 909 (1993) ("[a] leading question 'instructs [the] witness how to answer or puts into his mouth words to be echoed back'") (citation omitted). "However, the trial court has discretion to allow leading questions on direct examination." State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 149.

         {¶26} The case worker, Stitt, described the underlying events as follows:

I was speaking with Amanda, that was the first time meeting Nathan, * * * and their son was eating chips off * * * the small table in the living room * * * and the dog took the chip from the baby's hand. And Nathan * * * c[a]me over an punched the dog, brought the dog to the back of the home and continued to beat the dog. The dog was whimpering. * * * The dog was crying and Mr. Brewer was swearing at the dog. There was a lot of violent movement.

         {¶27} The prosecutor ...


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