The opinion
[Cite as State v. Brown, 2024-Ohio-2148.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-210355
TRIAL NO. B-2002726
Plaintiff-Appellee, :
vs. :
RICKEY BROWN, : O P I N I O N.
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: June 5, 2024
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Paula Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Michael J. Trapp, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Judge.
{¶1} This matter is before us on remand from the Supreme Court of Ohio,
which reversed this court’s opinion in State v. Brown, 2022-Ohio-2752, 198 N.E.3d
111 (1st Dist.) (“Brown I”), after determining that the evidence was sufficient to
support his robbery conviction, and that he waived any Brady claim by not seeking a
continuance or mistrial. State v. Brown, Slip Opinion No. 2024-Ohio-749, ¶ 28-29.
The Supreme Court has directed us to address the second, third, and fifth assignments
of error that we initially concluded were moot.
Factual and Procedural Background
{¶2} After a bench trial, Rickey Brown was convicted of having weapons
while under a disability, two counts of aggravated robbery with specifications and two
counts of robbery. Brown I at ¶ 1. The charges arose when Holly Smothers arranged
to purchase a vehicle for $600 through the online app Letgo from “Danny Buckley,”
who was later identified as Brown. Id. at ¶ 9. When Smothers arrived with her friend
Sharlene Johnson Bryant, Brown brandished a gun and took Smothers’s money, which
Bryant was holding. Id. at ¶ 11.
{¶3} “The next day, Smothers went to the Letgo app and found the email
address connected with the Danny Buckley Letgo account. She then found a Facebook
account associated with the same email address. The Facebook account was under the
name Rickey Tan.” Brown, 2024-Ohio-749, at ¶ 7. “Smothers sent the Facebook
information and photographs from the Facebook account to the case detective. She
also showed the Facebook photos to Bryant. From the Facebook information and
photos, the police department's intelligence unit was able to identify the man as Rickey
Brown.” Id. at ¶ 8.
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{¶4} “The Facebook photos were disclosed during discovery, but the way they
were obtained was not. Although the police knew about Smothers’s independent
investigation prior to trial, the prosecutors handling the case apparently did not learn
until trial that Smothers had provided the Facebook photos to the police.” Id. at ¶ 11.
“Smothers’s detective work came out during the state’s direct examination of her.
Instead of moving for a mistrial or requesting a continuance, Brown’s attorney chose
to use Smothers’s sleuthing to attempt to discredit the victims’ identifications and the
police investigation.” Id. at ¶ 12. Brown’s attorney also “cross-examined the
department’s case detective about relying on the Facebook information obtained from
Smothers and failing to conduct a more thorough investigation of his own.” Id. at ¶
13.
After the state rested, the defense put on an alibi case. First, Shemaiyah
Thomas testified (and presented documentation to confirm) that May 3
was her birthday and that she had rented an Airbnb for that evening to
celebrate there with Brown and Jasmine Pennington. Text messages
with Brown corroborated Thomas’s testimony that Brown and
Pennington arrived at the Airbnb at 4:52 p.m., and Thomas testified that
the three of them spent the remainder of the day together. Moreover,
prior to Brown’s arrival at the Airbnb, Thomas talked to him on the
phone while he and Pennington were at Kroger purchasing birthday
items, and Thomas could tell where they were because of the
background noises. Pennington also testified that Brown was wearing
jeans on the day in question (unlike the man with a gun, who was
reported to have been wearing black shorts).
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OHIO FIRST DISTRICT COURT OF APPEALS
Pennington testified next. She confirmed that starting at about 3:00
p.m. on May 3, she and Brown went to Kroger, then to Mr. Sushi, and
then to the Airbnb. They briefly left the Airbnb together to return to Mr.
Sushi when they realized that there was an error with the order that
needed to be corrected. Pennington testified, in short, that she was with
Brown in the car and at Kroger around the time of the robbery.
Finally, Brown testified that he did not rob Smothers or Bryant. He
testified, consistently with Pennington and Thomas, that he and
Pennington went to Kroger and then to Mr. Sushi. He presented records
from his debit card showing that he paid for food at Mr. Sushi on May
3. He also testified that the car he had attempted to sell on Letgo was a
1998 Toyota Corolla, not a 2001, and that his Letgo profile was under
his name, Rickey Brown—not “Danny Buckley.” In addition, he
provided title records showing that he had owned and later sold a 1998
Toyota Corolla. He also pointed out that he is not 5’5” and 120 pounds
but is 5’8” and was 150 pounds at the time of the robbery (he was 170
pounds by the time of trial). He further demonstrated the extensive
tattoos on his arms. Finally, Brown testified that he had pled guilty to
burglary in the past, because he had committed it. However, he
maintained that he did not commit this robbery.
The trial judge found Brown guilty of one count of aggravated robbery
(of Bryant), one count of robbery (of Smothers), and one count of having
a weapon while under disability.
Id. at ¶ 49-52 (Brunner J., concurring in judgment only).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} “About two weeks [after the verdict], Brown filed a motion for a new
trial. The motion asserted that the state violated Brady by not disclosing that
Smothers had conducted her own investigation and by not revealing that both
Smothers and Bryant had viewed the Facebook photos prior to the photo lineups.” Id.
at ¶ 14.
{¶6} This court reversed, “finding insufficient evidence that Brown robbed
Smothers because it was undisputed that Brown took the money from Bryant, not
Smothers.” Brown I, 2022-Ohio-2752, at ¶ 50-54. We also held that the trial court
erred in denying Brown’s motion for a new trial. Id. at ¶ 67. The state appealed our
opinion to the Ohio Supreme Court, which reversed our opinion and remanded this
matter to us to address Brown’s assignments of error that we previously determined
were moot. Id. at ¶ 38.
Testifying While Handcuffed
{¶7} In his second assignment of error, Brown contends that the trial court
erred by receiving his testimony while he was in handcuffs.
{¶8} In a jury trial, a criminal defendant has the right to remain free of
physical restraints that are visible to the jurors. State v. Jackson, 141 Ohio St.3d 171,
2014-Ohio-3707, 23 N.E.3d 1023, ¶ 153. However, in a bench trial, it is presumed that
judges “are able to disregard the defendant’s appearing before them in shackles.” Id.
at ¶ 154. Here, Brown did not object to the restraints, and the record does not indicate
that he was prejudiced by the restraints.
{¶9} Accordingly, we overrule the second assignment of error.
Ineffective Assistance of Counsel
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶10} In his third assignment of error, Brown contends that his counsel was
ineffective for failing to request a continuance to investigate Smothers’s testimony that
his Facebook page was linked to Danny Buckley’s account and for failing to object to
the restraints during trial. With respect to the restraints, we have already concluded
that Brown was not prejudiced by the use of restraints. He further claims that he was
deprived of the opportunity to challenge Smothers’s testimony regarding the
connection between Danny Buckley’s Letgo account and Brown’s Facebook page.
{¶11} In considering claims of ineffective assistance of counsel, courts
presume that counsel’s conduct falls within the wide range of reasonable professional
assistance. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶
101. The decision whether to request a continuance after learning of surprise evidence
or a surprise witness is a matter of trial strategy. State v. Ali, 10th Dist. Franklin No.
18AP-935, 2019-Ohio-3864, ¶ 44, citing State v. Bailey, 10th Dist. Franklin No. 04AP-
553, 2005-Ohio-4068, ¶ 26 (failing to request a continuance after surprise witness
testimony did not amount to ineffective assistance of counsel as it fell within the realm
of a strategic and tactical decision). “Debatable strategic and tactical decisions may
not form the basis of a claim for ineffective assistance of counsel, even if a better
strategy had been available.” State v. Samatar, 152 Ohio App.3d 311, 2003-Ohio-
1639, 787 N.E.2d 691, ¶ 90 (10th Dist.).
{¶12} Trial counsel cross-examined Smothers about the details of her
discovery of the link between Brown’s Facebook account and Danny Buckley’s account.
“Brown did not ask for a continuance or a mistrial at any time during the trial. Instead,
once Smothers’s independent investigation was revealed at trial, Brown chose to use
that information at trial to attempt to discredit the reliability of the victims’ photo-
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OHIO FIRST DISTRICT COURT OF APPEALS
lineup identifications and the thoroughness of the police investigation.” Brown, 2024-
Ohio-749, at ¶ 37. Thus, trial counsel’s choice to cross-examine Smothers instead of
requesting a continuance was a strategic decision that “may not form the basis of a
claim for ineffective assistance of counsel, even if a better strategy had been available.”
See Samatar at ¶ 90.
{¶13} Brown also fails to show how he was prejudiced by counsel’s failure to
request a continuance. Trial counsel cross-examined Smothers about her
investigation. Brown argues on appeal that a continuance would have allowed him to
challenge and disprove Smothers’s testimony regarding the connection between
Danny Buckley’s Letgo account and Brown’s Facebook page, but this assertion is
highly speculative. There is nothing in the record demonstrating that there is a
reasonable probability that the result of the proceedings would have been different if
trial counsel had requested a continuance. See Ali at ¶ 45, citing Bailey at ¶ 27.
{¶14} We overrule the third assignment of error.
Manifest Weight of the Evidence
{¶15} In his fifth assignment of error, Brown argues that his convictions were
against the manifest weight of the evidence.
{¶16} When considering a challenge to the weight of the evidence, an appellate
court must review the entire record, weigh the evidence and all reasonable inferences,
consider the credibility of the witnesses, and determine whether, in resolving conflicts
in the evidence, the trier of fact clearly lost its way and created a manifest miscarriage
of justice. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
Reversing a conviction as being against the manifest weight of the evidence should be
reserved for only the most “ ‘exceptional case in which the evidence weighs heavily
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OHIO FIRST DISTRICT COURT OF APPEALS
against the conviction.’ ” State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st
Dist.1983), paragraph three of the syllabus.
{¶17} Although an appellate court may review credibility when considering
the manifest weight of the evidence, the credibility of witnesses is primarily an initial
determination for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d
212 (1967), paragraph one of the syllabus. The trier of fact is best able “to view the
witnesses and observe their demeanor, gestures and voice inflections, and use these
observations in weighing the credibility of the proffered testimony.” State v. Wilson,
113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24, citing Seasons Coal Co.,
Inc. v. Cleveland, 10 Ohio St.3d 77, 80-81, 461 N.E.2d 1273 (1984).
{¶18} Here, Brown contends that the trial court’s reliance on the witnesses’
identification of Brown was misplaced because their identification of Brown was
tainted, although he acknowledges that their testimony was credible because they
believed that Brown was the robber. He further argues that the testimony of Brown
and his witnesses established that Brown did not commit the robbery.
{¶19} However, a manifest-weight review requires the appellate court to “bear
in mind the trier of fact’s superior, first-hand perspective in judging the demeanor and
credibility of witnesses.” State v. Mickens, 10th Dist. Franklin No. 08AP-626, 2012-
Ohio-5902, ¶ 30. Because the trial court was in the best position to determine the
credibility of each witness, we cannot conclude this record presents a scenario where
the court clearly lost its way and created such a manifest miscarriage of justice that the
convictions must be reversed and a new trial ordered.
{¶20} Accordingly, we overrule the fifth assignment of error.
Conclusion
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{¶21} Having overruled Brown’s remaining assignments of error, we affirm
the judgment of the trial court.
Judgment affirmed.
BOCK, P.J., and WINKLER, J., concur.
Please note:
The court has recorded its own entry this date.
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