The opinion
[Cite as State v. Brown, 2017-Ohio-4231.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
PREBLE COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2016-07-006
: OPINION
- vs - 6/12/2017
:
LARRY E. BROWN II, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS
Case No. 15CR011706
Martin P. Votel, Preble County Prosecuting Attorney, Kathryn West, Preble County
Courthouse, 101 East Main Street, Eaton, Ohio 45320, for plaintiff-appellee
Repper, Pagan, Cook, Ltd., Christopher J. Pagan, 1501 First Avenue, Middletown, Ohio
45044, for defendant-appellant
PIPER, J.
{¶ 1} Defendant-appellant, Larry Brown, appeals his convictions in the Preble County
Court of Common Pleas for rape, sexual battery, gross sexual imposition, and importuning.
{¶ 2} The charges stem from allegations made by B.H., who alleged that Brown had
kissed her, forced her to masturbate him, and forced her to perform fellatio on him when she
was 11 and 12 years old. According to B.H., Brown's sexual abuse occurred at a farm owned
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by a family friend when she and Brown would be there working for the farm's owner. B.H.
recorded some of her thoughts about the sexual abuse in a journal, which was later found
and read by her mother. B.H. also told her mother and grandmother about the sexual abuse
after it occurred.
{¶ 3} Brown was indicted, and pled not guilty. After waiving the right to a jury trial,
Brown was tried by the court during a bench trial. The trial court found Brown guilty on all
charges. After merging the other counts into the rape charge, the court sentenced Brown to
a term of ten years to life in prison. Brown now appeals his convictions and sentence, raising
the following assignments of error.
{¶ 4} Assignment of Error No. 1:
{¶ 5} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT WHEN IT
DID NOT GRANT HIS MOTION FOR A NEW TRIAL.
{¶ 6} Brown argues in his first assignment of error that the trial court should have
granted him a new trial based on a Brady violation by the state.
{¶ 7} According to Crim.R. 33(A), a new trial may be granted "for any of the causes
affecting materially" the defendant's substantial rights. Two of those causes include "(1)
irregularity in the proceedings, or in any order or ruling of the court, or abuse of discretion by
the court, because of which the defendant was prevented from having a fair trial," and "(3)
accident or surprise which ordinary prudence could not have guarded against." The decision
to grant or deny a motion for a new trial is within the sound discretion of the trial court, and
will not be reversed absent an abuse of that discretion. State v. Ruhlman, 12th Dist. Butler
No. CA2005-05-125, 2006-Ohio-2137. An abuse of discretion "connotes more than an error
of law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or
unconscionable." State v. Adams, 62 Ohio St.2d 151, 158 (1980).
{¶ 8} Brown argues that he was entitled to a new trial because he was surprised and
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the proceedings were irregular where the victim alleged for the first time at trial that an
instance of sexual abuse occurred at a site other than the farm. While Brown argues on
appeal that such testimony constituted a Brady violation, we need not address the matter as
such, given that Brown moved for a new trial, but did not argue a Brady violation to the trial
court in his motion. Instead, Brown argued only that the information about a second location
was not disclosed before trial, and as such, Brown was unable to prepare a defense or cross-
exam the victim on the point. Brown, however, never alleged that the victim's statement was
material, or that the results of his trial would have been different, as is required pursuant to
the Brady standard. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963).
{¶ 9} Moreover, and even if Brown properly argued a Brady violation in the trial court,
we note the information regarding an additional location was, in fact, addressed at trial, and
as such, could not form the basis of a Brady claim. See State v. Hanna, 95 Ohio St.3d 285,
2002-Ohio-2221, ¶ 82 (denying Brady claim where the evidence in question "was presented
during the trial [and not after the trial as in Brady]" so that "no Brady violation exists")
(Emphasis sic.); State v. Payne, 10th Dist. Franklin No. 09AP-107, 2010-Ohio-1018, ¶ 31.
("if the evidence is disclosed during the trial, there is no Brady violation") (Emphasis sic.); and
State v. Clarke, 12th Dist. Butler No. CA2015-11-189, 2016-Ohio-7187, ¶ 40 ("However, a
Brady violation occurs only where suppressed exculpatory evidence is discovered after trial.
* * * Even if the evidence is disclosed during the trial, there is no Brady violation").
{¶ 10} If a possible Brady violation or a failure of discovery is first determined during
trial, the proper remedy is a motion for an order of continuance pursuant to Crim.R. 16. State
v. Brown, 2d Dist. Montgomery No. C.A. Case No. 12949, 1992 Ohio App. LEXIS 4991
(Sept. 30, 1992). Absent a showing that a continuance or other order, such as a mistrial,
would remedy the prejudice concerned, a failure to move for continuance or other
appropriate order waives the objection. State v. Wickline, 50 Ohio St.3d 114 (1990).
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{¶ 11} The record indicates that the victim testified during the state's case-in-chief
that Brown forced her to masturbate him at a location other than the farm where she alleged
all the other sexual abuse occurred. The state does not deny that the evidence was not
made available to Brown during discovery because the victim only disclosed the specific
instance of abuse the Friday before the trial started. Even so, the victim's testimony, aside
from the location it was alleged to have occurred, was cumulative to the other testimony
given regarding the times Brown forced the victim to masturbate him as part of his ongoing
sexual abuse of the victim. Moreover, Brown never asked for a continuance to investigate
the issue or prepare a new or different defense based on the allegation that the sexual abuse
also occurred at a different location.
{¶ 12} There is no indication in the record that the evidence regarding the sexual
abuse taking place at another location materially affected Brown's rights. Brown heavily
cross-examined the victim about her credibility, and specifically raised questions regarding
the victim's changing story. Thus, the trial court was well-aware of the defense's strategy of
casting the victim as a liar and asking the trial court to believe that her testimony lacked
credibility as compared to Brown's own testimony that he did not sexually abuse the victim.
{¶ 13} The fact that the trial court understood the defense strategy is apparent when
reviewing its entry denying Brown's motion for a new trial in which it stated,
Even if the court were to assume that Defendant has established
that there was misconduct or surprise, the Court does not find
that there is a strong probability that a different result would be
reached at a second trial. Defendant's defense was simply that
the alleged victim * * * was lying when she testified about the
various sexual encounters. He denied all of the claims of sexual
misconduct. Defendant simply speculates that had he been
aware of a claim that an incident happened at a second location
[the] same may have led to additional fact witnesses, helped to
establish a time line, or provided a potential alibi defense. In the
Court's opinion, said speculation is not sufficient to support a
motion for a new trial.
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{¶ 14} We agree with the trial court that Brown's speculation was insufficient to
demonstrate his right to a new trial. Having found that the trial court did not abuse its
discretion in denying Brown's motion for a new trial, we overrule Brown's first assignment of
error.
{¶ 15} Assignment of Error No. 2:
{¶ 16} APPELLANT RECEIVED THE INEFFECTIVE ASSISTANCE OF COUNSEL.
{¶ 17} Brown argues in his second assignment of error that he received ineffective
assistance of counsel because his trial counsel failed to offer impeachment evidence and
question the victim on prior false allegations.
{¶ 18} To prevail on an ineffective assistance of counsel claim, appellant must show
his trial counsel's performance was deficient, and that he was prejudiced as a result. State v.
Clarke, 12th Dist. Butler No. CA2015-11-189, 2016-Ohio-7187, ¶ 49; Strickland v.
Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052 (1984). Trial counsel's performance will
not be deemed deficient unless it fell below an objective standard of reasonableness.
Strickland at 688. To show prejudice, appellant must establish that, but for his trial counsel's
errors, there is a reasonable probability that the result of his trial would have been different.
Id. at 694.
{¶ 19} The failure to satisfy either prong of the Strickland test is fatal to an ineffective
assistance of counsel claim. Clarke at ¶ 49. Counsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the exercise of reasonable
professional judgment. State v. Burns, 12th Dist. Clinton No. CA2013-10-019, 2014-Ohio-
4625, ¶ 7.
{¶ 20} Brown first alleges that his trial counsel was ineffective for failing to ask for a
recess to investigate the victim's claim that an instance of sexual abuse occurred at a
location other than the farm. As previously stated, however, the victim's testimony regarding
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Brown forcing her to masturbate him at a different location was cumulative to many other
instances of abuse that occurred during the years that Brown molested the victim, and did
not form the basis for any of the charges for which Brown stood trial. There is no indication
in the record that the results of Brown's trial would have been different had counsel asked for
a continuance to investigate one additional instance of sexual abuse as described by the
victim where the defense strategy was that Brown never sexually abused the victim
regardless of location.
{¶ 21} Moreover, Brown claims that the failure of counsel to investigate the issue
denied him the opportunity to impeach the victim's credibility. The record, however, indicates
that defense counsel's strategy during the entire bench trial was to challenge the victim's
credibility throughout with cross-examination. Defense counsel did challenge the victim's
credibility on many occasions. The trial court, acting as the trier of fact, found the victim's
testimony more credible than Brown's, and the results of Brown's trial would not have been
different had defense counsel attempted to impeach the victim's credibility one more time.
{¶ 22} Brown speculates as to the impeachment value of any testimony his counsel
might have been able to develop. Extrinsic evidence from other witnesses may have
contradicted the victim, but it does not necessarily mean that the victim was not telling the
truth. Any effect upon the trial court would simply remain unknown, and we cannot say that
the result of the trial would have been any different.
{¶ 23} Brown next claims that his trial counsel was ineffective for not questioning the
victim about her previous claims of sexual abuse by other men. Brown asserts that had his
trial counsel questioned the victim about her previous allegations, the trial court would have
seen her as a "problem child who had lied about many things in her life," including that she
made false allegations regarding sexual abuse. However, the record only indicates that a
third person who testified at trial indicated that she had heard that the victim had been
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sexually abused in the past. Yet, the victim never told the witness directly that she had been
sexually abused, let alone, that she had made false allegations involving sexual abuse in the
past.
{¶ 24} There is simply no indication in the record to support such a contention.
Brown has not supported his argument with any certainty on appeal that the victim would
have testified on cross-examination that she made false allegations about being abused in
the past. Even if defense counsel had asked the victim if she had ever made false
allegations in the past, the fact remains that the trial court found the victim's testimony
credible that Brown forced her into sex acts with him – regardless of what had or had not
occurred with other men in the past. As such, and absent a showing that the results of
Brown's trial would have been different, we find no ineffective assistance of counsel. Brown's
second assignment of error is overruled.
{¶ 25} Judgment affirmed.
HENDRICKSON, P.J., and S. POWELL, J., concur.
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