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State v. Brunner

Court of Appeals of Ohio, Fourth District, Scioto

August 23, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
DOUGLAS L. BRUNNER, JR., Defendant-Appellant.

          Matthew F. Loesch, Portsmouth, Ohio, for Appellant.

          Shane A. Tieman, Scioto County Prosecuting Attorney, and Jay Willis, Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee.

          DECISION AND JUDGMENT ENTRY

          JASON P. SMITH, PRESIDING JUDGE

         {¶1} Appellant, Douglas Brunner, Jr., appeals his conviction for robbery, a third-degree felony in violation of R.C. 2911.02(A)(3). On appeal, Appellant contends that 1) prosecutorial misconduct occurred during the cross-examination of his witness, Michael Miller; 2) the trial court abused its discretion in instructing witness Michael Miller regarding perjury in the presence of the jury; 3) his conviction for third-degree felony robbery was against the manifest weight and sufficiency of the evidence; 4) the trial court abused its discretion in sentencing him to the maximum time allowed by law in the instant case; and 5) his trial counsel was ineffective when he failed to request a jury instruction regarding eyewitness identification. Because we find the errors made by the prosecution did not rise to the level of prosecutorial misconduct and the errors made by the trial court did not constitute reversible error, Appellant's first and second assignments of error are overruled. Likewise, Appellant's third assignment of error is overruled in light of our finding that his conviction was supported by sufficient evidence and was not against the manifest weight of the evidence. Further, because appellant's maximum and consecutive sentences were supported by the record and were not contrary to law, his fourth assignment of error is overruled. Finally, having found Appellant failed to demonstrate his counsel was deficient, Appellant's fifth assignment is also overruled. Accordingly, having found no merit in the assignments of error raised by Appellant, the judgment of the trial court is affirmed.

         FACTS

         {¶2} Appellant was indicted in the Scioto County Court of Common Pleas on one count of robbery, a third-degree felony, in violation of R.C. 2911.02(A)(3). The indictment stemmed from an incident that occurred at a Wendy's restaurant in Scioto County at approximately 9:00 p.m. on December 20, 2017. A separate companion case was filed charging Appellant with a community control violation based upon his failure to report for over a year, as well as the commission of a new felony (the robbery indictment). Appellant admitted to the community control violation, but the robbery charge proceeded to a jury trial.

         {¶3} The State presented several witnesses at trial, including: Daniel Collins, the employee who was working the drive-thru on the night in question; Robert Madden, the employee who was working the cash register; Kimberly Mercer, the shift manager; Gina Maynard, the district manager; Officer Michael Queen from the Portsmouth Police Department, who was dispatched to Wendy's when the incident was reported; Sergeant Nathan Williams from the Portsmouth Police Department, who located and detained Appellant and his co-defendant, Michael Miller, later that night; and Detective Steven Timberlake from the Portsmouth Police Department, who took over the investigation once Appellant and Miller were apprehended.

         {¶4} Pertinent to the issues on appeal, cashier Robert Madden testified that he was working as the cashier at Wendy's on the night in question when two men, later identified as Appellant and Michael Miller, walked in. A man wearing a khaki jacket went into the bathroom and the other man, who was wearing a Cleveland Cavaliers hat, stood in the lobby for a short while and then walked up to the counter and placed an order. As Madden was completing the order, a man walked through a door next to the cash register and entered the employee-only area behind the counter. Madden testified that he got a good look at the man and maintained eye contact with him throughout the incident. Madden further identified Appellant as the perpetrator in open court during trial. Madden testified that Appellant repeatedly poked him and told him not to try anything. He testified he felt threatened and was scared, and that he complied because he didn't know if Appellant had a weapon, but he could only assume he did based upon his conduct. Madden further testified that after Appellant took cash out of the drawer, he ordered him to get on his knees and put his head against the wall, and that he complied because he was afraid to interfere and was not sure what Appellant might do. Appellant then fled with Miller.

         {¶5} Daniel Collins, who was working the drive-thru, also testified at trial. He testified that although he could not see the perpetrator's face, he saw a man come through the employee door and rob Madden. He testified that the perpetrator had his right hand in his coat pocket and it looked like he was holding something. Additional testimony introduced at trial indicated the two men were seen by shift manager, Kimberly Mercer, leaving the parking lot in an orange Pontiac. Mercer was able to view the license plate number and provide it to law enforcement. Appellant and Miller were arrested several hours later after being located at a BP gas station in an orange Pontiac. A Cleveland Cavaliers hat was located on the dash of the vehicle and a khaki jacket was found in the backseat.

         {¶6} In addition to witness and law enforcement testimony, the State played the surveillance video for the jury. The jury also viewed the recorded video of Miller's statement that he provided to law enforcement the night he was arrested. In this statement, Miller said Appellant was with him at Wendy's and committed the robbery. Miller testified for the defense, however, at trial. In his trial testimony he claimed Appellant was not with him at Wendy's and he refused to provide the name of the individual that was with him. After being impeached with his prior statement to law enforcement, Miller stood by his trial testimony and maintained Appellant was not the person who committed the robbery.

         {¶7} Appellant was ultimately convicted of the robbery charge and the trial court sentenced Appellant to a thirty-six-month prison term. The trial court also sentenced Appellant to an eighteen-month prison term on the community control violation and ordered it to be served consecutively to the prison term imposed on the robbery charge, for an aggregate sentence of fifty-four months. These matters were disposed of by separate judgment entries in separate cases. Appellant has timely appealed both cases, which have been consolidated for purposes of appeal, and raises five assignments of error for our review.

         ASSIGNMENTS OF ERROR

I. "Prosecutorial Misconduct occurred during the cross examination of Appellant's witness Michael Miller."
II. "The Trial Court abused its discretion in instructing witness Miller regarding perjury in the presence of the jury."
III. "Appellant's conviction for Felony 3 Robbery was against the manifest weight and sufficiency of the evidence."
IV. "The Trial Court abused its discretion in sentencing Appellant to the maximum time allowed by law in the instant case."
V. "Counsel for Appellant was ineffective when he failed to request a jury instruction regarding eyewitness identification."

         ASSIGNMENTS OF ERROR I and II

         {¶8} Because Appellant's first and second assignments of error are interrelated, we address them in conjunction with one another for ease of analysis. In his first assignment of error, Appellant contends that prosecutorial misconduct occurred during the cross-examination of his witness and co-defendant, Michael Miller. More specifically, Appellant argues the prosecutor committed misconduct by threatening Appellant's witness with perjury in the presence of the jury. In his second assignment of error, Appellant further contends the trial court abused its discretion in instructing Miller regarding perjury in the presence of the jury.

         {¶9} "The test for prosecutorial misconduct is whether the conduct was improper and, if so, whether the rights of the accused were materially prejudiced." State v. Leonard, 4th Dist. Athens No. 08CA24, 2009-Ohio-6191, ¶ 36, citing State v. Smith, 97 Ohio St.3d 367, 2002-Ohio-6659, 780 N.E.2d 221, ¶ 45. "The 'conduct of a prosecuting attorney during trial cannot be grounds for error unless the conduct deprives the defendant of a fair trial.'" Id., quoting State v. Givens, 4th Dist. No. 07CA19, 2008-Ohio-1202, ¶ 28, in turn quoting State v. Gest, 108 Ohio App.3d 248, 257, 670 N.E.2d 536 (8th Dist.1995). "Prosecutorial misconduct constitutes reversible error only in rare instances." State v. Edgington, 4th Dist. Ross No. 05CA2866, 2006-Ohio-3712, ¶ 18, citing State v. Keenan, 66 Ohio St.3d 402, 405, 613 N.E.2d 203 (1993). "The 'touchstone of analysis * * * is the fairness of the trial, not the culpability of the prosecutor. * * * The Constitution does not guarantee an "error free, perfect trial." '" (Alterations sic.) Leonard at ¶ 36, quoting Gest at 257.

         {¶10} We initially address the State's contention that defense counsel entered a general objection to the prosecutor's question but failed to specifically object on grounds of prosecutorial misconduct. Evid.R. 103 provides, in pertinent part, as follows:

(A) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected; and
(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context[.]

         Here, the record reveals that defense counsel made a general objection when the prosecutor asked Appellant if he knew the definition of perjury, but he did not specifically allege grounds of prosecutorial misconduct. However, this was not a situation where the admission or exclusion of evidence was at stake. Rather, defense counsel was objecting to a question posed by the prosecutor that was likely unanticipated and, as will be discussed below, was clearly improper. Under these circumstances, we believe the specific grounds of the objection were apparent at the time. Thus, we conclude this error was properly preserved for review.

         {¶11} We now turn to the merits of Appellant's argument. As set forth above, midway through the State's cross-examination of Appellant's witness, Michael Miller, and after receiving numerous "I don't know" and "I don't remember" answers, the prosecutor abruptly asked Miller if he knew the definition of perjury. When Miller stated that he did not, the prosecutor asked the trial court to instruct the witness on the definition of perjury. The trial court obliged, over a second objection by defense counsel. Both parties cite to State v. Halley, 93 Ohio App.3d 71, 637 N.E.2d 937 (1994) regarding the prosecutor's and trial court's remarks regarding perjury in the presence of the jury. In Halley, the court explained at 79 as follows:

Ordinarily, accusations or reminders of perjury by a prosecutor are improper. Such statements function as backhanded impeachment as well as attempted witness intimidation and express the prosecutor's personal belief or opinion as to the credibility of the witness, which is improper. See State v. Thayer (1931), 124 Ohio St.1, 176 N.E. 656; State v. Smith (1984), 14 Ohio St.3d 13, 14 OBR 317, 470 N.E.2d 883; and DR 7-106(C)(4) of the Code of Professional Responsibility. Due to the prosecutor's role as representative of the state, it is important to avoid any such impropriety so that the stature of the office of the prosecuting attorney does not lend credence or distrust to the testimony of either party's witnesses. Even if the prosecutor is aware of a witness's falsity, unless the prosecutor chooses to testify, it is improper to imply the witness is a perjurer. A correct method of impeachment would be the presentation of a rebuttal witness and, during closing arguments, drawing the jury's attention to the inconsistency in the testimony. The jury may then perform its rightful function and determine credibility.

         Halley further explains that:

Intimidation of a witness by accusations or insinuations of perjury is improper if done by either the court or the prosecutor. While it may not be improper for the court or even a prosecutor to warn a witness of the penalties of perjury and his right against self-incrimination out of the hearing of the jury, it should ordinarily not be done in the presence of the jury. Furthermore, when the warning reaches the level of intimidation and interferes with a defendant's right to present witnesses, reversible error occurs. See Webb v. Texas (1972), 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330; State v. Dumaine (1989), 162 Ariz. 392, 783 P.2d 1184.

         {¶12} Applying the reasoning set forth in Halley, which we find instructive, the prosecutor's remarks and the instruction provided by the trial court were clearly erroneous. As such, we conclude Appellant has demonstrated the first prong of the test for prosecutorial misconduct. The second prong of the test requires Appellant to demonstrate that his rights were materially prejudiced to the extent he was deprived of a fair trial. Reversible error only occurs when both prongs of the test are met. Thus, the improper conduct at issue here may not rise to the level of prosecutorial misconduct or constitute reversible error if no prejudice resulted.

         {¶13} Here, as in Halley, although the prosecutor's statements were improper, it does not appear the comments by either the prosecutor or the trial court intimidated the witness. Despite Appellant's argument to the contrary, Miller continued to testify after the improper warning of perjury. Further, a video of his prior statement to law enforcement was played for the jury and resulted in Miller being impeached with his prior inconsistent statement, which clearly stated Appellant was with him during the incident at Wendy's on the night in question. Nevertheless, when cross-examination continued after ...


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