Petition for Writ of Certiorari — Brandon Alexander, Petitioner v. Ohio
Supreme Court briefJul 29, 2024
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APPENDIX TABLE OF CONTENTS
A.
State v. Alexander, 2023-Ohio-2708, 222 N.E.3d 812
(6th Dist. Aug. 4, 2023) (affirming conviction) ................................ Al
B.
State v. Alexander, Sixth Dist. Lucas No. L-22-1183
(Oct. 27, 2023) (denying reconsideration) ..................................... A42
C.
State v. Alexander, Sixth Dist. Lucas No. L-22-1183
(Jan. 2, 2024) (denying motion to certify conflict) .......................... A49
D.
State v. Alexander, 173 Ohio St.3d 1404, 2024-Ohio-555,
227 N.E.3d 1265 (denying jurisdiction) ........................................ A63
E.
State v. Alexander, 173 Ohio St.3d 1478, 2024-Ohio-1577,
232 N.E.3d 829 (Apr. 30, 2024) (denying reconsideration) ............... A64
F.
State v. Alexander, Lucas C.P. No. CR-0202101678
(June 10, 2022) (sentencing entry) .............................................. A65
G.
Excerpt from Volume III of trial transcript, testimony of
M.A. (June 8, 2022) .................................................................. A68
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IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
STATE OF OHIO
APPELLEE
COURT OF APPEALS NO. {48}1-22-1183
TRIAL COURT NO. CR0202101678
V.
BRANDEN ALEXANDER
DECISION AND JUDGMENT
APPELLANT
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Andrew S. Follis and Ashley E. Mueller, for appellant.
*****
ZMUDA, J.
{,I 1} Appellant, Branden Alexander, appeals the July 12, 2022 judgment of the·
Lucas County Court of Common Pleas, sentencing him to a prison term of 7 to 10-1/2
years, following a jury trial in which he was found guilty of felonious assault in violation
of R.C. 2903.ll(A)(l) and (D), a felony of the second degree. For the reasons that
follow, we affirm.
E-JOURNALIZED
1.
AUG 04 2023
A2
I.
Introduction
HI 2} On May 13, 2021, Alexander was indicted on one count of rape in violation
of R.C. 2907.02(A)(2) and (B), a felony of the first degree, and two counts of felonious
assault in violation of R.C. 2903.ll(A)(l) and (D), each a felony of the second degree.
The indictment alleged that Alexander assaulted his girlfriend, M.C., on or about
April 24, 2021, and assaulted and raped M.C. on April 27, 2021.
{,i 3} On May 19, 2021, Alexander appeared for arraignment and entered a plea of
not guilty to the indictment.
{,14} On May 15, 2022, the matter proceeded to a jury trial. The state called M.C.
as a witness, along with Detective Raynard Cooper, Officer Scott Histed, forensic nurse
Natalie Jones, BCI forensic scientist Lindsay Nelson-Rausch, Laurie Renz, the Toledo
Police supervisor of the crimes against persons unit, and Detective Theresa Talton, the
lead detective assigned to the case for the domestic violence unit. For the defense case,
Alexander called some of M.C.'s medical providers: residents Kevin Serdahely and
Natalie Sirianni, and Dr. Kevin Nguyen. Alexander also called Aaron Nolan, the director
of inmate services for the Lucas County Sheriff's Department, to challenge whether
Alexander received a visit from an investigator from children services while he was in
custody awaiting trial. As the final defense witness, Alexander testified.
{,i 5} The jury returned a verdict of not guilty for the rape charge, charged in count
one of the indictment. As to the remaining charges of felonious assault in counts two and
three, the jury advised it was unable to reach a unanimous verdict and the trial court
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declared a mistrial on these charges. The trial court scheduled the matter for a new trial
on June 6, 2022.
{4,I 6} On June 6, 2022, a second trial commenced on the two felonious assault
charges, counts two and three of the indictment. In the second trial, the state opted not to
call all of the witnesses from the first case. The state again presented testimony of M.C.,
Detective Cooper, Officer Histed, and forensic nurse Jones. The state also called new
witnesses, Julia Bomia, a children services caseworker who interviewed M.C. in the
hospital, Allen County Probation Officer Doug DeWeise, assigned to supervise E.K. after
his release from prison, and M.A., Alexander's ex-wife.
{,J 7} After deliberations, on June 10, 2022, the jury returned a verdict of not
guilty as to count 2, felonious assault arising from the incident of April 24, 2021, and a
verdict of guilty as to count 3, felonious assault arising from the incident of April 27,
2021.
{,J 8} On July 5, 2022, the trial court held a sentencing hearing. The court found
Alexander had been found guilty of felonious assault in violation of R.C. 2903.ll(A)(l)
and (D), a felony of the second degree, and, after addressing the statutory factors under
R.C. 2929.11 and 2929.12, determined he was not amendable to community control and
imposed a stated minimum prison term of 7 years with a maximum indefinite prison term
of 10 1/2 years. The trial court imposed mandatory post release control of not less than
18 months and not more than 3 years, and provided notice pursuant to R.C.
2929.19(B)(2)(c) and 2967.271.
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HI 9} Alexander filed a timely appeal from the trial court's judgment.
II.
Assignments of Error
{,J 10} In his appeal, Alexander raises the following assignments of error:
1. Mr. Alexander's trial counsel rendered constitutionally ineffective
assistance by failing to object to improper and highly prejudicial
questioning and testimony of Mr. Alexander's ex-wife and by failing to
cross-examine her.
2. The trial court erred in admitting Exhibit 35, which contained
inadmissible character evidence.
3. The trial court erred in denying defense counsel's request for
curative instruction regarding inadmissible character evidence.
4. The cumulative effect of the above errors deprived Mr. Alexander
of a fair trial.
5. The trial court erred in sentencing Mr. Alexander to an indefinite
term under the unconstitutional Reagan Tokes Act.
III.
Analysis
{,J 11} Alexander challenges his conviction and sentence, arguing ineffective
assistance of counsel in failing to cross-examine M.A., error in the admission of character
evidence, error in the jury instruction, and error in imposing a sentence under the Reagan
Tokes Law, which Alexander argues is unconstitutional. In addressing the issues raised
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on appeal, we first consider the relevant evidence· adduced in Alexander's trial, followed
by consideration of Alexander's argument relative to that evidence.
A. The Trial
{,i 12} Alexander argues that the crucial difference in the second trial was the
addition of testimony from M.A., Alexander's ex-wife. Otherwise, he argues, the two
trials "largely mirrored each other." A thorough review of the trial transcripts reveals
additional differences in the two trials, beyond the addition of M.A. as a witness.
{,i 13} In the second trial, the rape charge was no longer. at issue, based on the
jury's acquittal in the first trial. Furthermore, the state opted not to call some witnesses
who testified in the first case, including a forensic scientist and two of the investigating
officers. The state also called two other new witnesses, in addition to M.A. The state
called Julia Bomia, a children services caseworker who interviewed M.C. in the hospital
in Alexander's presence. The state also called Allen County probation officer Doug
DeWeise, who was assigned to supervise E.K. after his release from prison.
{,i 14} In the second trial, M.C. testified first in the state's case in chief. She
testified that she moved in with Alexander, at his invitation, in January 2021, after a few
months of dating. Alexander and M.C. were the primary residents in Alexander's
apartment. M.C. has a young son from a prior relationship, but her son lived in Lima
with his father, E.K., spending only weekends with M.C. in Toledo. Alexander has a
daughter from a prior marriage, but Alexander's ex-wife, M.A., has custody of the child
and lives with her in Michigan.
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HI 15} M.C. described her relationship with Alexander after they first began
dating, as well as the change in the relationship after she moved in with Alexander and
learned more about him. M.C. testified that she learned that Alexander misrepresented
things about himself, claiming to be a college graduate when he never finished school or
that he was financially secure when he relied on an ex-girlfriend to help him pay his bills.
M.C. testified that money became a problem in the relationship, as she was not working
and relied on her family for financial support.
{,J 16} Soon after moving in with Alexander, the couple experienced conflict in
their relationship, and verbal fights became physical in early March. In April, 2021,
M.C. sustained injuries as a result of two, separate incidents, requiring hospitalization for
the latter injuries. M.C. was admitted with a lacerated liver, a broken rib, a collapsed
lung, and a ruptured disc in her neck, and underwent surgery to replace a ruptured disc on
May 1, 2021. After M.C. was released from the hospital, she returned to Alexander's
home and on May 5, 2021, the couple had another argument that M.C. claimed ended
with Alexander pushing her into a wall. When Alexander left the home to pick up his
daughter, M.C. packed her car to leave Alexander. M.C. testified that she drove a short
distance from Alexander's apartment and called 911.
{,J 17} M.C. had initially blamed E.K. for assaulting her on April 24 and blamed
her injuries of April 27 on others when she sought medical treatment. After the argument
of May 5, 2021, M.C. reported Alexander as her assailant to Officer Histed and his
partner when they responded to her 911 call. M.C. accused Alexander of assaulting her
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on both occasions, and further alleged that Alexander raped her on April 27, 2021. Police
arrested Alexander shortly after M.C.'s report.
{,i 18} Regarding the first assault, M.C. testified that on April 24, 2021, she
attended a funeral in Napoleon, Ohio, and joined Alexander at a friend's home that night
after returning to Toledo. At that gathering at their friend's home, M.C. and Alexander
argued, Alexander became angry and began calling M.C. names, and M.C. left for home
with her son. M.C. testified that Alexander arrived home about 45 minutes later, woke
her to continue the argument, and then then assaulted her. She testified that Alexander
struck her face repeatedly and then choked her until she passed out. She testified that, as
a result of the assault, she could not open her left eye, had marks on her face, and her
body and head ached, with the headache described as severe. M.C. indicated that she did
not call the police because she was scared and she and her son had no other place to stay.
After the assault, M.C. testified that Alexander showed remorse, apologized, and tended
to her.
{,J 19} After M.C.'s headache did not improve, she scheduled an appointment with
her doctor. On April 26, 2021, M.C. saw her doctor, who photographed M.C.'s injuries.
M.C. testified that Alexander instructed her to blame her ex, E.K., and M.C. complied.
She initially accused E.K. as the perpetrator in seeking medical care but did not report the
incident to police. E.K. had previously served a prison term for committing domestic
violence against M.C., and M.C. saw E.K. each weekend she had visitation with their
son. Her doctor recommended that M.C. go to the E.R. for a scan to rule out a
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concussion. At the emergency room, M.C. repeated her accusation against E.K. as the
perpetrator. M.C. testified that Alexander accompanied her on the doctor and emergency
room visits.
{,J 20} On April 27, 2021, the date of the second assault, M.C. testified that she
was feeling much better and planned to attend Taco Tuesday at a restaurant with two of
her female friends. M.C. covered the bruises on her face with make-up and dressed for a
night out. She encouraged Alexander to do something with his friends and have a guys'
night out. After dinner, M.C. and her friends went to Evolution Bar for drinks. Many of
the bar patrons were outside in the parking lot, enjoying the weather and showing off
their vehicles, and M.C. and her friends joined others for an impromptu party in the
parking lot. M.C. returned home between 10:00 and 11:00 p.m.
{,J 21} M.C. testified that she arrived home first, and Alexander was intoxicated
when he arrived home sometime after. M.C. testified that she received a phone call from
an unknown male, a wrong number, and Alexander became enraged and accused her of
cheating on him. Alexander hit her and choked her until she briefly lost consciousness.
M.C. testified that she awoke to Alexander's continued assault, which had transitioned to
kicking and punching her torso as she lay on the floor, pinned against some furniture.
After calming down a bit, Alexander attempted to engage in sex by putting his penis in
her mouth, but stopped after noticing M.C. was not breathing. M.C. testified that
Alexander helped her change out of her bloody clothing and took her to the hospital. On
the way to the hospital, Alexander told M.C. to explain her injuries in a manner that did
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not implicate him. M.C. testified that she initially told a story about a bar fight at
Evolution, explaining she·was knocked down by the crowd and injured in the melee.
HI 22} In explaining her initial false reports, blaming E.K. or a bar fight for her
injuries, and her delay in naming Alexander as her assailant, M.C. testified that she feared
Alexander because he threatened to kill her if she implicated him. M.C. also testified that
Alexander was present throughout her hospital stay, with uncertainty as to where he was
or when he would reappear in her room. After a hospital chaplain gave her literature that
contained resources for domestic violence victims, she planned to seek assistance and
move out after her release from the hospital.
{,i 23} On cross examination, M.C. acknowledged her memory lapse in the first
trial regarding the earlier incident, in which she did not remember her son was present.
She also admitted she did not save any of her blood-spattered clothing and police did not
secure bedding that she claimed was bloody. M.C. acknowledged she lied to her family
after the incident of April 27, and told them she was in the hospital because of a car
accident. Additionally, M.C. testified that she and Alexander had sex the night she
returned home from the hospital, the day before she left, claiming Alexander initiated sex
as his usual way of making amends after beating her. After leaving Alexander, M.C.
testified that she spent the next nine months in a shelter where she received therapy and
counseling, and later found work.
{,i 24} The next witness for the state was Detective Raynard Cooper. Detective
Cooper's testimony addressed the "bar fight" story, initially told by M.C. and later
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recanted. He testified that he was a 28-year police veteran who worked off-duty,
projecting at the Evolution Bar. He worked the night of April 27, 2021, and testified that
the night was "very uneventful." On cross-examination, Cooper reiterated there were no
fights at the bar the night of April 27, based on his own observation and subsequent
questioning of other witnesses in response to the investigating detective's inquiry. He
acknowledged that people often gathered in the parking lot when weather was nice, but
these crowds cleared by 10:30 p.m. at the latest.
{,J 25} Next, Officer Scott Histed testified about responding to M.C.'s 911 call on
May 5, 2021. He testified that he met with M.C. at a car wash parking lot and she had
visible bruises. Both Histed and his partner, Officer Andy Wrosek, were equipped with
body cameras, and the video was published to the jury without objection. Histed testified
that M.C. made no mention of a bar fight or her son's presence for either incident, and he
acknowledged, on cross-examination, that M.C. was upset that children services was now
involved with her son.
{,J 26} Natalie Jones testified next. She testified as an expert in forensic nurse
examinations, without objection. Jones was called to examine M.C. because the trauma
team had concerns regarding possible domestic violence, based on M.C.'s initial story of
the assault which "was bizarre" and prompted additional questions. Jones went through
all the injuries sustained by M.C., and concluded the injuries were not consistent with
being trampled in a bar fight. On cross-examination, Jones admitted she reviewed only a
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portion of M.C.'s medical record and could not state with certainty how any of the
injuries to M.C. occurred.
{,J 27} The final three witnesses to testify for the state in the retrial were new
witnesses. Children services investigator Julia Bomia testified regarding an interview she
conducted with M.C. following a call regarding M.C.'s child. Bomia testified about her
observations from that interview, indicating Alexander was present for the interview,
holding M.C. in the hospital bed. She testified that Alexander informed her that he was
M.C.'s main source of income and support.
{,J 28} The next new witness was Probation Officer Doug DeWeise. He testified
regarding E.K.'s possible role in an assault against M.C., indicating he supervised E.K.,
and E.K. seemed to be a model probationer. DeWeise received no reports of any
misconduct until a Toledo detective called him in May, indicating an altercation in
Toledo weeks before. E.K. had been checking in as required, and DeWeise had no
knowledge of any incidents outside Allen County. DeWeise conducted an unannounced
home visit on April 16 and an in-person check-in with E.K. on April 23, 2021, and
DeWeise believed that E.K. was in compliance, reporting for drug screening, and
maintaining employment.
{,J 29} The final new witness, Alexander's ex-wife, M.A., testified regarding her
history with Alexander, generally, and events on April 28, 2021, specifically. Much of
her testimony described her relationship with Alexander. The couple dated for many
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years before marrying, and M.A. described their life after the divorce was finalized in
September 2020. When asked to describe the relationship, M.A. testified:
Tumultuous. Aggressive. I would say that he was more worried
about his reputation than - than anything. He's angry, and that caused a lot
of problems in our relationship.
{,I 30} M.A. met Alexander when she was 22, and at the time, she believed
Alexander was a student at the University of Toledo. She indicated Alexander was
"released as a student" at some point, but she was unsure of the exact date. She also
stated, "There was not always truths given." Alexander portrayed himself as a college
football player, but M.A. later learned he was kicked off the team .and kicked out of
school.
{,I 31} Alexander and M.A. had a young daughter and agreed to meet at a neutral
site in Sylvania to facilitate Alexander's weekend visitation. M.A. testified that she
requested the meeting point as a change from a more remote location picked by
Alexander, and because communications via phone did not work, she and Alexander
began using an app recommended by family court that kept a record of their
conversations, to ensure they limited their contact to co-parenting matters. M.A.
indicated "using this app made me feel safer."
{,I 32} After Alexander told M.A. about his girlfriend, M.A. asked to meet M.C.,
and Alexander brought M.C. to one of the exchanges. M.A. wanted to introduce herself
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to M.C., as someone who would be spending time with her daughter on Alexander's
weekends. M.A. had no other contact with M.C.
{,J 33} M.A. then testified regarding the scheduled pickup on April 28, 2021.
Alexander communicated to M.A. "at 3:36 p.m. on Wednesday the 28th that he would
not be able to get our daughter for the arranged pickup time." M.A. was already on the
way to the meeting place because pickup was scheduled at 4:00 p.m. M.A. testified that
she was frustrated about the late notice because she had awakened their daughter from a
nap to meet Alexander on time. M.A. then referenced her conversations with Alexander,
printed out from the app, for April 28, and read Alexander's message, which stated:
I am at the hospital. [M.C.] and I were in a car accident. I won't be
able to get her. I am waiting to be discharged and don't know how long it's
going to take.
M.A. responded with disbelief, and Alexander responded, "yeah, a car accident. It is
ridiculous. You a piece of work. I couldn't even find my phone." M.A. then started
asking Alexander questions, seeking details of his car accident, asking three times where
the accident occurred. Instead of providing details, Alexander responded with insults and
called M.A. crazy.
{,J 34} M.A. continued to question Alexander regarding the accident, asking if it
was caused by drunk driving. Alexander responded by pointing out M.A.'s family
members who drink and drive, and then sent a photograph of himself wearing a hospital
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visitor sticker on his shirt. M.A. asked Alexander about the visitor sticker, and
questioned why he was not wearing a wristband. Alexander did not respond.
{,J 35} The next communication recorded by the app occurred much later, at 10:16
p.m. The context of that message indicated a phone call to Alexander's daughter, earlier
in the evening. M.A. testified that, during the phone call, he yelled at M.A. "saying how
dare you tell my daughter that I was in a car accident. How dare you tell my daughter
that. I didn't want to get her." M.A. testified she never did "those things." She did not
believe Alexander had been in an accident.
{,J 36} M.A. testified that she responded as she often did when Alexander yelled at
her in front of their daughter, asking him to stop and telling him the yelling was not good
for their child. She also testified that she told Alexander she prays he will change,
because their daughter deserves better. The trial court admitted the printout of the
messages from the app, which recorded all messages between April 7 and May 5, 2021,
over the objection of Alexander's trial counsel. The text messages were not published to
the jury at that time, however, with the jury hearing only the testimony of M.A. regarding
the text messages related to the missed visitation of April 28.
{,J 37} Alexander's trial counsel asked no questions on cross-examination.
{,J 38} The state rested without calling any of the remaining witnesses identified
on their witness list. Alexander moved for acquittal pursuant to Crim.R. 29, and the trial
court denied the motion.
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HI 39} Alexander was the first witness to testify for the defense. He testified he
saw the injuries on M.C. but did not cause them. He noticed the first set of injuries after
she dropped her son off to her ex, E.K., either on April 17 or April 24, 2021. He also
claimed M.C. got into fights and bar fights, and she fought men and women. Much of
Alexander's testimony portrayed M.C. as an unstable and aggressive person, contrasted
with his own qualities of stability and calm.
{,J 40} Alexander testified that he had M.C.'s son on April 24, 2021, while she
attended a funeral, although he questioned where she really was that day. Alexander and
M.C.'s child spent time at the house of Alexander's friend, and when M.C. joined them
around 10 p.m., he and M.C. got into an argument before M.C. took her son and left for
home. Alexander stated he got home later and went to bed. }ie indicated he was
"checked out" of the relationship at that point but M.C. insisted she could not be kicked
out; she had lived there too long and got her mail there. Alexander testified that he asked
M.C. to leave, and in March she did leave for a few hours before breaking a window on
the door to get back in. Alexander testified that, although he asked M.C. to move in with
him in January, M.C. never had her own key to the home the entire time she stayed with
him.
{,J 41} Alexander testified that his relationship with M.C. was a physical one, and
M.C. liked to be choked during sex and they always started out with oral sex. "That's all
she ever wanted to do, and at times I didn't want it and she would get mad at me for it."
On the night of April 27, 2021, Alexander testified he was the first to arrive home and he
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was not drunk. He testified that he was already in bed when M.C. came in, they had sex,
and then he fell back asleep. Sometime later he awoke to M.C. sitting on the edge of the
bed, saying she could not breathe or catch her breath. He thought she was having a panic
attack and tried to calm her. M.C. then went into the bathroom and Alexander lay back
down. He next remembered waking to the sound of M.C. coughing loudly and roughly,
begging to be taken to the hospital. He testified he changed her into gray sweats and a
yellow hoodie, collected M.C.'s phone and keys, and drove her to the hospital. He called
off work to be with M.C.
{,i 42} Alexander acknowledged that M.C. was seriously hurt. He claimed he took
two days off from work to be with her but was never in the room when doctors or nurses
spoke to her. He was present when the children services caseworker interviewed M.C.
He slept some nights in a chair next to M.C.'s bed, and other nights in the car in the
hospital parking lot.
HI 43} The state sought to question Alexander regarding why he left college, his
felony charges, and his history of domestic violence in relationships, based on
Alexander's own testimony on direct examination. The trial court noted the careful
articulation of questions, specifically asking about convictions and not conduct, found no
doors clearly opened on any of the topics, and denied the state's request.
{,i 44} On cross examination, Alexander testified M.C. was not injured when she
left for the funeral or wherever she went on April 24, then testified she was likely injured
on April 17, 2021, by E.K., and covered the bruises with makeup. Alexander also
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testified that on April 27, 2021, it was dark when M.C. came home and he did not see any
injuries. He testified he and M.C. had sex and she woke him up some time after
indicating she could not breathe. Alexander attributed the delay between M.C.'s injuries
and her complaint of pain to M.C.'s intoxication that night.
{,i 45} Alexander also testified he was trying to get rid of M.C. and did not
consider her a girlfriend anymore, but he stayed with her two days at the hospital.
Although Alexander admitted that staying with M.C. resulted in two unexcused absences
from work, adding to his infractions at work and risking his job, Alexander also claimed
that he had smoothed it over with his supervisor and planned to use FMLA leave to avoid
termination. In response to M.A.' s testimony, Alexander admitted he lied to M.A. about
being in a car accident or being injured and in the hospital for treatment.
{,i 46} The prosecutor challenged Alexander about contradictions in his testimony.
For example, Alexander was questioned regarding his assertion that he was through with
M.C. but also devoted to her during her hospital stay, or that he took unauthorized time
'
off from work, but the absences were permitted. As to the injuries of April 27, the
prosecutor challenged Alexander's claim that M.C. was already injured when she
returned home, referencing his testimony in the first trial.
Q: You testified previously that when [M.C.] came home she was
having trouble breathing. So she was already having trouble breathing
when she got home?
A:No.
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Q: On April 27th?
A:No.
Q: She wasn't?
A: No, she was not.
Q: [M.C.] wasn't injured when she arrived home on April 27, 2021?
A: She was already injured previously, but I don't know other
injuries, because when she came in that night it was dark, and she just came
in, and we had sex.
Q: She was fine when she got home, is that your testimony?
A: I'm not going to say she was fine butQ: But she wasn't struggling to breathe?
A: She wasn't struggling to breathe.
Q: Her lung wasn't collapsed yet when she arrived home April 27th?
A: No. What I think was I think her alcohol started to wear off and
the pain started to arise.
Q: That's what you think, Mr. Alexander.
A:Yes.
Q: So when she gets home, no sign of injury. Everything is fine. The
two of you have sex. Correct?
A: That's correct.
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Q: That's what you're telling us? You testified previously that
[M.C.] performed oral sex on you on April 27th and was struggling to
breathe while she did so, correct?
A: That's correct.
Q: [M.C.] was having a hard time breathing while you had your
penis in her mouth?
A: That's correct. I don't think so, but yes. That's correct.
Q: And it was soon after that [M.C.] was struggling to breathe so
much that she needed to go to the hospital, correct?
A: Not soon after, but awhile after, yes.
Q: Awhile after. How long?
A: Hour or two.
Q: An hour or two into the beating?
A: I never touched her.
Q: Never touched her. But you want the jury to believe that [M.C.]
was home for several hours with you with these significant injuries, with a
lacerated liver, and a collapsed lung, before it became clear that she needed
medical treatment?
A: I never seen or knew anything about it. I never knew where she
went. I never knew who she was with. I never knew she went to a parking
lot party.
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All she told me she went to Don Juan's. I don't know anything
about what happened to her.
Q: You don't know anything. All I know is she's home for a couple
hours. Everything seems fine. She is struggling to breathe while we have
oral sex, but it takes several hours for those significant of injuries to really
take effect, for the alcohol to wear off if there is a pain to settle in, is that
right?
A: Alcohol and maybe drugs.
After cross-examination, trial counsel asked no questions on re-direct.
HI 4 7} The defense next presented two witnesses to corroborate Alexander's
claims related to his work situation and property damage he claimed M.C. caused when
she broke into the home, both issues unrelated to the injuries M.C. received on April 27.
He called a human resources representative from the Toledo office of his employer and
the property manager for his rental. The human resources witness had no knowledge of
the documents the defense sought to introduce regarding Alexander's absences. The
property manager brought a dated work order for repair of the door's window, a
document never produced in discovery, and no other testimony placing the broken
window on a timeline to demonstrate relevance. Neither document was admitted into
evidence.
{,i 48} The defense then called the emergency room doctor who treated M.C., Dr.
Alisa Roberts. Dr. Roberts acknowledged that the injuries M.C. sustained would be
20.
A21
painful, but the pain could be dulled by intoxication. On cross examination, the doctor
noted in M.C.'s chart that there was no indication of intoxication.
{,i 49} The defense rested after Dr. Roberts' testimony, and the state called no
rebuttal witnesses.
{,i 50} The trial court then addressed any pending motions before finalizing the
jury instructions with counsel. Alexander's trial counsel indicated a request for a limiting
instruction regarding prior acts, sent by email to the trial court's staff attorney and
opposing counsel. Alexander's trial counsel acknowledged they did not file a requested
jury instruction, but instead orally requested the trial court to give the standard jury
instruction regarding prior acts. Trial counsel argued that this instruction was necessary
due to the text exchange within Exhibit 35 that referenced a prior history of domestic
violence between Alexander and his ex-wife, M.A. The trial court had previously
admitted Exhibit 35, over a defense objection to the hearsay contained within the
document, but had not published the contents of the exhibit to the jury. M.A.' s
testimony, furthermore, did not address prior domestic violence committed by Alexander
against her.
{,i 51} The following exchange then occurred between the trial court and
Alexander's trial counsel:
The Court:
There is a couple ways of handling this. The whole document is
marked as State's Exhibit 35 and it is part of the record, and when any
21.
A22
record that we admit many times there is areas that should just be blacked
out or censored or edited. That could be one of those. If I give an
instruction other prior convictions the language in that is evidence was
received about the commission of crimes, wrongs, or other acts, so that is
articulating that we received some sort of evidence in connection to that,
meaning there was put in front of the jury evidence of other crimes,
wrongs, or acts other than the offenses charged here.
It doesn't seem to me that that actually occurred unless we put this
document in without editing, and if I give that instruction then I'm calling
attention to something that didn't occur and saying that Mr. Alexander had
evidence about his prior crimes, wrongs, or bad acts put into the record,
which I don't think that's accurate.
So I mean you're asking for an instruction that seems like it is out of
place. I'm not sure of the strategy on that, but if you look at it the way I am
articulating that what are you really looking for?
[Trial Counsel]:
I would prefer the redaction of Mr. - of [M.A.'s] statement of that
and his response regarding you know you hit me. You slapped me around.
You are a big girl. And then goes on to that response.
The trial court then asked the prosecution regarding redaction, and directed Alexander's
trial counsel to note all the instances in Exhibit 35 counsel believed should be redacted.
22.
A23
{,J 52} After lengthy discussion off the record, the trial court addressed the matter
further.
The Court:
We have been talking about adding instruction for other acts or prior
convictions. We've been on the record and off the record throughout that,
but that was largely because we're going through State's Exhibit 35, which
is a copy of communications on a communication app for shared parenting
from Mr. Alexander and his ex-wife, [M.A.].
There were three entries that were lines from both of the two
engaged in this conversation that were being objected to and causing
concern, which caused the Defense to request the other acts and prior
convictions instruction.
After reading [O.J.I] 401.251 the Court's feeling was that draws
more attention to the concerns that the Defense has than simply excising the
lines out of Exhibit 35 that have not been read into the record by either side
and have not been presented to the jury.
There was initial objection by the State. I believe there is still
objection on that. However, I indicated a resolution could be the excising
of those lines that had not been utilized in testimony nor presented to the
jury.
23.
A24
We have decided that there are three such entries, and the parties
have agreed that if the Court is going to excise anything that the entire
sentence of that entry, whether it be sent by [M.A.] or Mr. Alexander,
should just be excised as opposed to editing the concerning portions of the
sentence out of that entry.
The prosecution and defense both agreed on the record to admit a redacted version,
Exhibit 35A, for the jury to consider during deliberation.
{',J 53} Alexander's trial counsel, however, maintained a request for the
instruction, based on the testimony that was adduced at trial from M.A. regarding
Alexander's aggressive character despite counsel's lack of contemporaneous objection to
this testimony. After the close of testimony, trial counsel noted, "[M.A.]'s not the victim
in this case. The only relevant testimony was the lying about the car crash." Counsel
suggested the trial court could instruct, "Any character testimony by the witness particular witness who testified as to Defendant's character - not to be weighed in
deciding the guilt or innocence of this case against [M.C.]."
{,J 54} In response, the trial court noted the lack of "an appropriate copy of a
requested instruction" in advance, such as the day before when the jury was released so
such matters could be addressed, and the fact "the jury is in the jury room waiting to
come out for closing arguments." The trial court denied the request for a potential jury
instruction, noting the time had passed and trial counsel failed to submit a proposed
instruction in writing.
24.
A25
HI 55} After addressing the defense objection and denying the request for a
limiting instruction, the defense formally rested in front of the jury. The case then
proceeded to closing argument.
{,i 56} In closing, the state stressed M.C.'s testimony and the acknowledged
evidence of serious injury following the second incident. The state also pointed out the
many contradictions exhibited by Alexander's testimony and Alexander's attempts to
portray M.C. as the cause of her own injuries. The state referenced Exhibit 35A in
closing, noting that M.A. called Alexander on his lie about being admitted to the hospital,
followed by "pages and pages" of an exchange in which Alexander tried to "make his exwife look like the liar and the bad guy when he was the one lying in the first place."
{,i 57} The defense emphasized the many stories M.C. told before accusing
Alexander, blaming both assaults on her ex, E.K. Defense counsel argued that the first
injuries were caused by E.K., "no question," and the later injuries were likely also his
fault, too. The defense also argued that M.C. exaggerated her injuries in her testimony,
and that the police did not conduct a proper investigation into each assault charge with
insufficient investigation to corroborate all of M.C.'s claims regarding the assaults.
{,i 58} The jury acquitted Alexander of count two, felonious assault arising from
an incident on or about April 24, 2021. The jury found Alexander guilty of count three,
felonious assault arising from the incident on April 27, 2021.
25.
A26
B. Admission of Evidence
HI 59} In challenging the conviction for felonious assault in count three,
Alexander argues his trial counsel was ineffective for failing to cross-examine his exwife, M.A. He also argues that the trial court erred in admitting the redacted Exhibit 35.
We address each argument in turn.
1. Ineffective Assistance of Counsel
{,i 60} In his first assignment of error, Alexander argues his trial counsel was
ineffective in failing to object to M.A.'s testimony or to cross examine her. He argues
that "[a] reasonable probability existed that [M.A.]'s testimony, the key difference
between the trials, changed the outcome."
{,i 61} The right to counsel, under the Sixth Amendment, exists "to protect the
fundamental right to a fair trial." Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984).
"When considering an allegation of ineffective assistance of counsel,
a two-step process is usually employed. First, there must be a
determination as to whether there has been a substantial violation of any of
defense counsel's essential duties to his client. Next, and analytically
separate from the question of whether the defendant's Sixth Amendment
rights were violated, there must be a determination as to whether the
defense was prejudiced by counsel's ineffectiveness." State v. Lytle [48
Ohio St.2d 391, 396-397, 358 N.E.2d 623 (1975)]. This standard is
26.
A27
essentially the same as the one enunciated by the United States Supreme
Court in [Strickland].
State v. Bradley, 42 Ohio St.3d 136, 141-42, 538 N.E.2d 373 (1989).
{,i 62} Pursuant to Strickland, a claim of ineffective assistance of counsel first
requires a showing that "counsel's representation fell below an objective standard of
reasonableness." Bradley at 142, quoting Strickland at 687-688. Trial counsel is entitled
to "a strong presumption" that their "conduct falls within the wide range of reasonable
professional assistance," with a "highly deferential" scrutiny of counsel's representation.
Bradley at 142, quoting Strickland at 689. "Counsel's performance will not be deemed
ineffective unless and until counsel's performance is proved to have fallen below an
objective standard of reasonable representation, and, in addition, prejudice arises from
counsel's performance." Bradley at 142.
{,i 63} Once an error by counsel is demonstrated, "the defendant must show that
there is a reasonable probability that, but for counsel's unprofessional errors, the result of
the proceeding would have been different." Bradley at 146, quoting Strickland at 694. In
other words, "the deficient performance must have been so serious that, 'were it not for
counsel's errors, the result of the trial would have been different."' State v. Welninski,
2018-Ohio-778, 108 N.E.3d 185, (6th Dist.) ,i 69, quoting Bradley at 141-142.
{,i 64} Alexander argues that the testimony of M.A., except for testimony
regarding his lie about being in the hospital, constituted improper character evidence
under Evid. R. 404(B)(l). In the alternative, Alexander argues that Evid.R. 608(A)
27.
A28
precludes evidence regarding his credibility through specific instances of conduct or
extrinsic evidence. In response, the state argues tl;lat M.A.'s testimony was introduced to
address Alexander's lie about being admitted to the hospital, with the lie demonstrating
consciousness of guilt.
a. Character and Other Acts Evidence
{,I 65} Character evidence is addressed under Evid.R. 404(A), which "is
essentially a rule of relevancy." Toledo v. Schmiedebush, 192 Ohio App.3d 402, 2011Ohio-284, 949 N.E.2d 504, ,I 39 (6th Dist.), citing State v. Horsley, 10th Dist. No. 05AP350, 2006-Ohio-1208, ,i 18. Pursuant to Evid.R. 404(A)(l), an accused is permitted to
introduce character evidence, "but only when such evidence is pertinent to the crime at
issue," and refers to character traits "that are inconsistent with commission of the alleged
offense." Id., citing State v. Hale, 21 Ohio App.2d 207, 215, 256 N.E.2d 239 (10th
Dist.1969) (additional citations omitted). The prosecution may introduce character
evidence "to rebut the same." See Evid.R. 404(A)(l).
{,I 66} Other acts evidence is addressed under Evid.R. 404(B)(l), which precludes
admission of evidence of other acts "to prove a character trait in order to demonstrate
conduct in conformity with that trait." State v. Williams, 134 Ohio St.3d 521, 2012-Ohio5695, 983 N.E.2d 1278, ,I 16, citing State v. Lowe, 69 Ohio St.3d 527, 530, 634 N.E.2d
616 (1994) (additional citation omitted.). However, pursuant to Evid.R. 404(B)(2), such
evidence may be admissible to prove "motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident."
28.
A29
{,i 67} Alexander refers to character evidence and other acts evidence as if they
are interchangeable, but M.A.'s testimony referenced her experience with Alexander's
aggressive and angry behavior during their marriage, and after the divorce, as part of
M.A.'s interactions with Alexander concerning their daughter. Alexander argues that the
state "took great pains to draw parallels between Mr. Alexander's relationship with
[M.A.] and his relationship with M.C., thereby seeking improperly to demonstrate actions
in conformity." There was no testimony, however, that Alexander assaulted M.A. or was
physically abusive, and the trial court excised all references to such conduct from the
state's Exhibit 35A. The trial court, furthermore, prevented the state from inquiring into
Alexander's prior felony charges or his exit from college amidst allegations of domestic
violence.
{,J 68} Propensity evidence, introduced to "prove the character of a person in order
to show action in conformity therewith," is not admissible. State v. Hartman, 161 Ohio
St.3d 214, 2020-Ohio-4440, 161 N.E.3d 651,, 21, citing State v. Lowe, 69 Ohio St.3d
527, 530, 634 N.E.2d 616 (1994); Evid.R. 404(B). Here, Alexander argues that M.A.'s
testimony introduced propensity evidence, but he fails to connect that testimony to the
two felonious assault charges addressed at trial. Instead, Alexander focuses on M.A.' s
depiction of Alexander as argumentative, with no support for the argument that M.A.'s
testimony demonstrated a propensity for physical assault. Considering the record, we do
not find M.A.'s testimony introduced any evidence regarding Alexander's propensity to
commit felonious assault.
29.
A30
b. Credibility Evidence
{,i 69} In the alternative, Alexander argues that the state introduced M.A.'s
testimony to preemptively attack his credibility. Evid.R. 608(A) provides:
The credibility of a witness may be attacked or supported by
evidence in the form of opinion or reputation, but subject to these
limitations: (1) the evidence may refer only to character for truthfulness or
untruthfulness, and (2) evidence of truthful character is admissible only
after the character of the witness for truthfulness has been attacked by
opinion or reputation evidence or otherwise.
{,i 70} In reviewing M.A.'s testimony, it is clear she indicated Alexander has a
reputation for lying in the context of her challenge to a specific assertion made by
Alexander on April 28, 2021, which M.A. believed to be untruthful. M.A. immediately
questioned Alexander's reason for canceling the pickup of their daughter, based on her
experience with Alexander. Alexander stuck to his lie of a car accident, but later
admitted he lied, ostensibly to spare M.C. embarrassment by telling M.A. why she was
really in the hospital. The rest of M.A.'s testimony, referencing his reputation, was
admitted without objection by his trial counsel.
{,i 71} Whether M.A.'s testimony constituted improper character evidence or other
acts evidence or acted as a preemptive impeachment of his credibility, Alexander appears
to agree that the testimony demonstrating Alexander lied about a car accident was
properly admitted. We have consistently found lies or deceptive conduct by an accused,
30.
A31
relative to the charged conduct, to be admissible as consciousness of guilt. See, e.g.,
State v. Zimbeck, 195 Ohio App.3d 729, 2011-Ohio-2171, 961 N.E.2d 1141, ,i 63 (6th
Dist.), citing State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001) (attempting to
establish a false alibi "strongly indicates consciousness of guilt."); State v. Knight, 6th
Dist. Erie No. E-21-017, 2022-Ohio-1787, ,I 51 (the defendant, accused of sex offenses,
did not immediately open the door to police and denied there was a child in his home,
admissible as consciousness of guilt).
{,I 72} In reviewing the record, the remainder of M.A.'s testimony falls
somewhere between the overwhelming attack on Alexander's reputation and credibility,
as claimed by Alexander, and the negligible reference to bad character, as argued by the
state. Considering M.A.'s testimony in its entirety, M.A. opined on Alexander's
reputation for telling lies and addressed his anger issues and his need to always be right
and protect his reputation. Trial counsel did not object and chose not to cross examine
M.A.
HI 73} As an initial matter, "whether to cross-examine witnesses and the extent of
that cross-examination is a tactical matter committed by the discretion of trial counsel
and cannot form the basis for an ineffective assistance of counsel claim." State v. Ellison,
6th Dist. Lucas No. L-02-1292, 2003-Ohio-6748, ,i 33, citing State v. Flors, 38 Ohio
App.3d 133, 139, 528 N.E.2d 950 (8th Dist.1987). We presume the decision to forgo
cross- examining M.A. was part of trial counsel's sound trial strategy; Alexander must
overcome this presumption to justify a finding of ineffective assistance of counsel. State
31.
A32
v. Mohamed, 151 Ohio St.3d 320, 2017-Ohio-7468, 88 N.E.3d 935, ,i 18, citing State v.
Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965 (1995), citing Strickland at 689, 104
S.Ct. 2052, 80 L.Ed.2d 674.
HI 74} In this case, Alexander admitted to the lie about a car accident, the most
pertinent aspect of M.A.'s testimony, and M.A.'s testimony clearly established that she
and Alexander were dealing with custody issues following a recent divorce. Alexander
presents no argument th~t negates a presumption of sound trial strategy, arguing instead
that the state must identify a reasonable trial strategy in order to defeat a claim of
ineffective assistance based on the failure to cross-examine M.A. The law requires
Alexander to overcome the presumption, however. See Mohamed at ,i 18.
{,i 75} Additionally, even if Alexander demonstrated that trial counsel was
ineffective in failing to object to M.A.'s testimony, Alexander must also show that such
failure affected the outcome of the trial to merit reversal based on ineffective assistance
of counsel. The failure to demonstrate either deficiency or prejudice will defeat a claim
for ineffective assistance of counsel. Strickland at 687. Thus, "a court need not
determine whether counsel's performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies. * * * If it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which
we expect will often be so, that course should be followed." Strickland at 697.
{,i 76} Alexander argues that counsel's failure to object to testimony bolstered the
credibility of M.C. Such a failure to object, bolstering credibility, has been deemed as
32.
A33
ineffective assistance of counsel "where resolution of factual issues turns solely upon the
credibility of those witnesses." State v. Nichols, 116 Ohio App.3d 759, 765, 689 N.E.2d
98 (10th Dist.1996). M.A.'s testimony did match the testimony of M.C. in some aspects,
in that both women described identical lying behavior of Alexander. Considering the
record, however, we do not find the case rested solely on M.C.'s versus Alexander's
credibility.
HI 77} At trial, there was no dispute that M.C. had sustained serious injuries; the
dispute concerned the identity of the assailant, or how M.C. sustained her injuries. M.C.
testified that she reported her ex, E.K. as the assailant in the first assault and attributed
her later injuries to being caught in a bar fight. She subsequently accused Alexander of
both assaults and testified at trial regarding each incident. The jury had more evidence,
however, than M.C.'s testimony.
{,I 78} Here, the jury clearly weighed M.C.'s credibility and Alexander's
credibility, along with the rest of the evidence, and found Alexander guilty of only the
second assault on April 27, 2021. The jury resolved the factual issues based on M.C.'s
credibility and also Alexander's credibility, considering credibility in the context of all
the evidence, including the medical record that all parties acknowledged demonstrated
painful injuries. The fact that deliberations produced a different verdict as to each count,
moreover, is indicative of a jury that weighed the testimony and evidence, with no
indication that Alexander was actually prejudiced by the admission of the M.A.'s
testimony, considering the jury's acquittal on count two. See State v. Ridley, 6th Dist.
33.
A34
Lucas No. L-10-1314, 2013-Ohio-1268, ~ 40 (evidence of past acts did not prejudice jury
where they returned a guilty verdict on only one of three counts); see also State v.
Sergent, 3d Dist. Seneca No. 13-19-20, 2019-Ohio-4717, ~ 32 ("the split verdict in the
instant case supports the conclusion that the jury critically weighed the testimony and
evidence, accepting some and rejecting others.").
{~ 79} Considering the record, we find Alexander's first assignment of error not
well-taken. 1
2. Admission of Exhibit 35
{~ 80} In his second assignment of error, Alexander argues that the trial court
improperly admitted the state's Exhibit 35, containing inadmissible character evidence.
Alexander contends the messages within the exhibit were inflammatory and prejudicial,
and could lead to inference of domestic violence between Alexander and M.A.
{~ 81} We review the trial court's admission of evidence under an abuse of
discretion standard. State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d
528, ~ 22. An abuse of discretion connotes that the trial court's attitude is unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450
N.E.2d 1140 (1983).
1 We note that Alexander attempted to assert additional assignments of error, with
supplemental argument, relegated to footnotes throughout his brief. We limit our review
to the assignments of error asserted according to App.R. 16(A)(3), as provided by App.R.
12(A)(2) ("The court may disregard an assignment of error presented for review if the
party raising it * * * fails to argue the assignment separately in the brief, as required
under App.R. 16(A).").
34.
A35
{,J 82} Alexander challenges the trial court's admission of Exhibit 35. During
trial, Alexander's trial counsel raised an objection to that exhibit, but was overruled. The
trial court, however, revisited its ruling in response to Alexander's request for a curative
instruction, addressing specific references to conduct within the unredacted Exhibit 35.
The trial court carefully reviewed the unredacted Exhibit 35 and suggested alternatives to
counsel, as follows:
There is a couple ways of handling this. The whole document is
marked as State's Exhibit 35 and it is part of the record, and when any
record that we admit many times there is areas that should just be blacked
out or censored or edited. That could be one of those. If I give an
instruction other prior convictions the language in that is evidence was
received about the commission of crimes, wrongs, or other acts, so that is
articulating that we received some sort of evidence in connection to that,
meaning there was put I front of the jury evidence of other crimes, wrongs,
or acts other than the offenses charged here.
It doesn't seem to me that that actually occurred unless we put this
document in without editing, and if I give that instruction then I'm calling
attention to something that didn't occur and saying that Mr. Alexander had
evidence about his prior crimes, wrongs, or bad acts put into the record,
which I don't think that's accurate.
35.
A36
So I mean you're asking for an instruction that seems like it is out of
place. I'm not sure of the strategy on that, but if you look at it the way I am
articulating that what are you really looking for?
In response to the trial court's query, Alexander's trial counsel opted for the redactions
and the prosecutor consented to a redacted Exhibit 35A. The trial court then confirmed
with the parties, as follows:
THE COURT: Before doing that we will have to make sure
everyone is in agreement that this Exhibit 35 as amended is acceptable to
both parties.
PROSECUTOR:
Yes, Your Honor.
TRIAL COUNSEL: Yes, Your Honor.
{,i 83} Because Alexander ultimately agreed to admission of Exhibit 35A, and the
jury never viewed Exhibit 35, Alexander has waived all but plain error relative to
admission of Exhibit 35A. 2 State v. Pelmear, 6th Dist. Fulton Nos. F-21-003, F-21-006,
2022-Ohio-1534, ,i 43, citing State v. Rios, 6th Dist. Williams No. WM-13-004, 2014Ohio-341, ,i 32 (additional citations omitted.). Plain error is error "affecting substantial
rights." Crim.R. 52(B). "Notice of plain error under Crim.R. 52(B) is to be taken with
the utmost caution, under exceptional circumstances and only to prevent a manifest
2 In his appellant's brief, Alexander consistently identifies Exhibit 35 as the improperly
admitted exhibit, despite the fact his trial counsel later consented to admission of a
redacted Exhibit 35A. In his reply brief, Alexander argues that, even with redactions, the
exhibit contained improper character evidence. However, Alexander fails to address the
lack of objection prior to admission, or application of the plain error standard on appeal.
36.
A37
miscarriage of justice." Pelmear at~ 43, quoting State v. Long, 53 Ohio St.2d 91, 97, 372
N.E.2d 804 (1978).
{~ 84} Alexander argues that the text messages contained within the redacted
exhibit were inflammatory and portrayed Alexander as a bad father and hinted at
domestic abuse. Similar to his argument concerning M.A.'s testimony, Alexander argues
that the text messages introduced improper character evidence that was "especially
prejudicial when the case turns on the jury's assessment of the defendant's and
complainant's relative credibilities." However, as we noted in resolving Alexander's first
assignment of error, the case did not rest solely on M.C.'s versus Alexander's credibility.
{~ 85} Alexander testified in both trials, and his testimony was often
contradictory. He was checked out of the relationship with M.C. but also so devoted to
her while she was in the hospital that he missed work to stay with her, risking his job.
Most significantly, however, Alexander testified that M.C. was already injured when she
returned home after Taco Tuesday, and despite the admittedly painful injuries she had
incurred, he did not notice any injury and engaged in sex with M.C., only to notice her
distress hours later. While Alexander explained this unawareness of prior injury based on
M.C.'s intoxication, the record demonstrated M.C.'s medical providers on the 27th did
not note intoxication in her medical chart. Considering this record, there was additional
evidence, besides the testimony of M.C. and Alexander, for the jury to consider in
resolving any credibility issues regarding the assault on April 27. We, therefore, do not
find the necessary "exceptional circumstances" meriting reversal for plain error.
37.
A38
{,J 86} Accordingly, we find Alexander's second assignment of error not well-
taken.
C. Curative Instruction
{,J 87} In his third assignment of error, Alexander argues the trial court erred in
denying trial counsel's renewed request for a curative instruction regarding character
testimony. Based on the record, trial counsel did not submit a proposed instruction in
writing, but instead made an oral request for the following:
That any character testimony by the witness - particular witness who
testified as to Defendant's character should be limited and not to - not to be
weighed in deciding the guilt or innocence of this case against [M.C.]
In response, the trial court noted the late hour, considering proposed instructions had
been distributed to counsel the day before and the case was poised for closing argument.
The trial court also took issue with the lack of specific citations for the proposed
instruction. In denying inclusion of trial counsel's character instruction, the trial court
also questioned the relevance of the instruction, stating:
If someone is going to base a decision on whether or not Mr.
Alexander committed two acts of felonious assault to [M.C.] because of his
salty relationship with his ex-wife I think that's stretching it to a point
that's not realistic.
38.
A39
So right now I am going to deny the addition of a proposed jury
instruction that is not even fully articulated, and that's just the fact of the
record right now.
HI 88} A trial court must "fully and completely give the jury all instructions which
are relevant and necessary for the jury to weigh the evidence and discharge its duty as the
fact finder." State v. Roberts, 2023-Ohio-142, 206 N.E.3d 144, ~ 93 (6th Dist.), quoting
State v. Comen, 50 Ohio St.3d 206, 553 N.E.2d 640 (1990), paragraph two of the
syllabus. We review a trial court's decision, denying a requested instruction, for an abuse
of discretion. Roberts at, 93, citing State v. Adams, 144 Ohio St.3d 428, 2015-Ohio3954, 45 N.E.3d 127,, 240 (additional citation omitted.).
{~ 89} Here, the record demonstrated that the trial court considered the possible
effect of providing Alexander's character instruction, and in its sound discretion, declined
to include the proposed instruction in the jury charge. Considering the evidence adduced
at trial, we find no abuse of discretion by the trial court. Appellant's third assignment of
error, accordingly, is not well-taken.
D. Cumulative Error
{~ 90} In his fourth assignment of error, Alexander argues that the cumulative
effect of trial errors deprived him of a fair trial. The cumulative error doctrine requires
reversal of a conviction "when the cumulative effect of errors in a trial deprives a
defendant of a fair trial even though each of the numerous instances of trial court error
does not individually constitute cause for reversal." State v. Alliman, 2023-Ohio-206,
39.
A40
206 N.E.3d 765, 1105 (6th Dist.), quoting State v. McKelton, 148 Ohio St.3d 261, 2016Ohio-5735, 70 N.E.3d 508, 1321 (additional citation omitted.).
{1 91} In order to find cumulative error, "there must first be a finding that multiple
errors were committed at trial." Alliman at 1105, quoting State v. Moore, 6th Dist. Wood
No. WD-18-030, 2019-Ohio-3705, 187. Where no instances of harmless error are found,
however, as in this case, the cumulative error doctrine does not apply. State v. Leu, 2019Ohio-3404, 142 N.E.3d 164, 156, citing State v. Garner, 74 Ohio St.3d 49, 64, 656
N.E.2d 623 (1995). Accordingly, Alexander's fourth assignment of error is not welltaken.
E. Reagan Tokes Law
{1 92} In his fifth and final assignment of error, Alexander argues the trial court
erred in sentencing him to an indefinite prison term under the Reagan Tokes Act, R.C.
2967.261. Alexander does not argue specific error,regarding his sentence, but instead
notes that we have determined the law is constitutional and the Ohio Supreme Court has
accepted review of all three constitutional challenges previously argued in other cases:
that Reagan Tokes violates the separation of powers doctrine, violates the right to a jury
trial, and violates the right to due process. See State v. Simmons, 163 Ohio St.3d 1492,
2021-Ohio-2270, 169 N.E.3d 1273; State v. Hacker, 161 Ohio St.3d 1449, 2021-Ohio534, 163 N.E.3d 585. Alexander asserts "these same constitutional challenges to
preserve these issues in the event that the Supreme Court holds the [Reagan Tokes law] is
unconstitutional."
40.
A41
{,J 93} On July 26, 2023, after briefing was complete in the appeal, the Ohio
Supreme Court issued its decision in State v. Hacker, Slip Opinion 2023-Ohio-2535,
finding the Reagan Tokes law constitutional, and determining the law does not violate the
separation of powers doctrine, the right to a jury trial, and the right to due process.
Hacker at ,i 41. Considering this ruling, as well as the lack of argument relative to any
specific error not otherwise addressed by the Supreme Court, we find Alexander's fifth
and final assignment of error not well-taken.
IV.
Conclusion
{,J 94} Based on the foregoing, we affirm the judgment of the Lucas County Court
of Common Pleas. Appellant is ordered to pay the costs of the appeal pursuant to App.R.
24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See, also, 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J.
JUDGE
Christine E. Mayle, J.
Gene A. Zmuda, J.
CONCUR
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio's Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court's web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
41.
A42
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
STATE OF OHIO
APPELLEE
COURT OF APPEALS NO. {48}L-22-1183
TRIAL COURT NO. CR0202101678
V.
BRANDEN ALEXANDER
DECISION AND JUDGMENT
APPELLANT
*****
This matter is before the court on the application for reconsideration filed by
appellant, Branden Alexander on August 14, 2023. Appellee, the state of Ohio, filed a
memorandum in opposition on September 1, 2023, and Alexander filed a reply brief on
September 15, 2023. The motion is now decisional.
Alexander seeks reconsideration of the August 4, 2023 decision, affirming his .
conviction for one count of felonious assault in violation of R.C. 2903.ll(A)(l) and (D).
State v. Alexander, 2023-Ohio-2708, -- N.E.3d --, (6th Dist.). In support, Alexander
argues we found error in the admission of evidence and failed to apply the appropriate
E-JOURNALIZED
1.
OCT 2 7 2023
A43
standard, articulated by State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d
1153. In opposing the motion, the state argues that the decision addressed appropriate
law, and the Morris standard does not apply to the issues raised on appeal, and even if
Morris did apply, the result would be the same.
An application for reconsideration is permitted by App.R. 26(A). To warrant
reconsideration, however, an applicant must identify an obvious error in the court's
decision or identify an issue "that was either not considered at all or not fully considered
by the court when it should have been." Matthews v. Matthews, 5 Ohio App.3d 140, 450
N.E.2d 278 (10th Dist.1981), paragraph two of the syllabus.
In the direct appeal, Alexander raised the following assignments of error:
1. Mr. Alexander's trial counsel rendered constitutionally ineffective
assistance by failing to object to improper and highly prejudicial
questioning and testimony of Mr. Alexander's ex-wife and by failing to
cross-examine her.
2. The trial court erred in admitting Exhibit 35, which contained
inadmissible character evidence.
3. The trial court erred in denying defense counsel's request for
curative instruction regarding inadmissible character evidence.
4. The cumulative effect of the above errors deprived Mr. Alexander
of a fair trial.
2.
A44
Alexander at ~ 10.
In seeking reconsideration, Alexander argues we applied the incorrect standard to
his first assignment of error, arguing resolution of his claim of ineffective assistance of
counsel required a "harmless beyond a reasonable doubt" determination, as stated in
Morris. On appeal, we addressed the claim of ineffective assistance of counsel according
to the standard set forth in Strickland v,- Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674(1984). Considering the facts in Alexander's case, the standard in
Strickland, as adopted by the Ohio Supreme Court, was the proper standard for review.
The facts in Morris, moreover, concerned properly preserved claims of error in the
admission of evidence and not ineffective assistance of counsel.
In Morris, the defense objected to testimony under Evid.R. 404(B), arguing
testimony of other acts by the victim's sister and mother was inadmissible as proof the
defendant raped the victim. Morris at~ 9-11. On appeal, the Ninth District Court of
Appeals determined the trial court erred in admitting this testimony and additionally
found the error was not harmless beyond a reasonable doubt. The Ninth District reversed
the judgment of the trial court. Morris at ~ 20. The Ohio Supreme Court accepted the
state's appeal and addressed the standard for harmless-error review under Crim.R. 52(A).
Id. at ~ 23. The Court held:
In determining whether to grant a new trial as a result of the
erroneous admission of evidence under Evid.R. 404(B ), an appellate court
3.
A45
must consider both the impact of the offending evidence on the verdict and
the strength of the remaining evidence after the tainted evidence is removed
from the record.
Morris at the syllabus. In Morris, the Ohio Supreme Court set forth a three-part analysis
that remains the test applied in determining error in the admission of evidence.
In State v. Boaston, 160 Ohio St.3d 46, 2020-Ohio-1061, 153 N.E.3d 44, the
Supreme Court reiterated the three-part analysis that should guide appellate review of
error in the admission of evidence. The Court restated the test, first addressed in Morris,
as follows:
In State v. Harris, 142 Ohio St.3d 211, 2015-Ohio-166, 28 N.E.3d
1256, we set out the three-part analysis, established previously in Morris,
141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, that should guide
appellate courts in determining whether the erroneous admission of certain
evidence affected the defendant's substantial rights so as to require a new
trial or whether the admission of that evidence was harmless error under
Crim.R. 52(A):
First, it must be determined whether the defendant was
prejudiced by the error, i.e., whether the error had an impact on the
verdict. [Morris] at~ 25 and 27. Second, it must be determined
whether the error was not harmless beyond a reasonable doubt. Id. at~
4.
A46
28. Lastly, once the prejudicial evidence is excised, the remaining
evidence is weighed to determine whether it establishes the defendant's
guilt beyond a reasonable doubt. Id. at~ 29, 33.
Boaston at~ 63-64, quoting Harris at~ 37 (additional citation omitted.).
In the present case, Alexander's trial counsel did not object to the testimony he
now argues was erroneously admitted by the trial court. On appeal, he raised no error
based on the admission of the testimony, having waived the issue for appeal, and instead
argued his trial counsel was ineffective in failing to object and failing to cross-examine
M.A. during trial. "To establish ineffective assistance of counsel, an appellant must show
'(1) deficient performance of counsel, i.e., performance falling below an objective
standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability
that, but for counsel's errors, the proceeding's result would have been different."' State
v. Walls, 2018-Ohio-329, 104 N.E.3d 280, ~ 74 (6th Dist.), citing State v. Hale, 119 Ohio
St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ,i 204, citing Strickland at 687-88.
In seeking reconsideration, Alexander suggests this court found error in the
admission of the evidence as an indication his trial counsel provided deficient
performance, and therefore we were required to apply the harmless-beyond-a-reasonabledoubt standard to the admission of that evidence. We disagree. First, we did not address
deficiency of counsel, finding Alexander failed to demonstrate prejudice that resulted
from his counsel's performance. Specifically, we noted that "[t]he failure to demonstrate
5.
A47
either deficiency or prejudice will defeat a claim for ineffective assistance of counsel[.]
Thus, 'a court need not determine whether counsel's performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged deficiencies.
* * * If it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often be so, that course should be followed.'"
Alexander at~ 75, quoting Strickland at 687; 697.
Second, the harmless-beyond-a-reasonable-doubt standard concerns error in the
admission of evidence in cases in which that issue was preserved for appeal through
timely objection, as addressed in Morris and Boaston. Alexander references no authority
that requires us to abandon the analysis under Strickland and apply Morris to an
ineffective assistance of counsel claim. Furthermore, in pursuing this argument,
Alexander merely revisits his contention that M.C. was not a credible witness, and but-for
the testimony of M.A., the jury had no other evidence to find him guilty of one of the
felonious assault charges, but would have acquitted him as to both charges. We
addressed and rejected this same argument on appeal. Alexander at~ 85.
"' An application for reconsideration is not designed for use in instances where a
party simply disagrees with the conclusions reached and the logic used by an appellate
court. App.R. 26 provides a mechanism by which a party may prevent' a miscarriage of
justice." Perrysburg Tp. v. City of Rossford, 6th Dist. Wood No. WD-02-010, 2002-
6.
A48
Ohio-6364, ~ 4, quoting State v. Owens, 112 Ohio App.3d 334, 336, 678 N.E.2d 956
(11th Dist.1996).
Applying the standard set forth in Matthews, Alexander's application for
reconsideration does not call attention to an obvious error in the court's decision, or raise
an issue for consideration that was not fully considered by the court when it should have
been. We therefore find Alexander's Application for reconsideration not well-taken and
his motion is denied.
It is so ordered.
Thomas J. Osowik, J.
JUDGE
Christine E. Mayle, J.
JUDGE
Gene A. Zmuda, J.
CONCUR
7.
JUDGE
A49
FILED
CiURT OF APPEAlS
2021; JM/ -2 AM IQ: 18
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
STATE OF OHIO
APPELLEE
COURT OF APPEALS NO. {48}1-22-1183
TRIAL COURT NO. CR0202101678
V.
BRANDEN ALEXANDER
DECISION AND JUDGMENT
APPELLANT
*****
This matter is before the court on the motion to certify a conflict to the Ohio
Supreme Court filed by appellant, Branden Alexander, on November 6, 2023. Appellee,
the state of Ohio, filed a memorandum in opposition on November 16, 2023, and
Alexander filed a reply brief on November 24, 2023. The motion is now decisional.
Alexander seeks to certify a conflict on the following question of law:
"When evaluating an ineffective-assistance-of-counsel claim based
on counsel's failure to object to improper character evidence, must Ohio
courts use the harmless-beyond-a-reasonable-doubt standard set forth in
E-JOURNALIZED
1.
JAN 0,2 2024
A50
State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153 to
evaluate prejudice?"
Alexander argues that our failure to apply the standard articulated in Morris is in conflict
with the decisions of the Third District Court of Appeals in State v. Stein, 3d Dist. Logal
No. 8-17-39, 2018-Ohio-2621, the Eight District Court of Appeals in State v. Marshall,
8th Dist. Cuyahoga No. 109633, 2022-Ohio-2666, and the Fifth District Court of Appeals
in State v. Bond, 5th Dist. Richland No. 2019CA0033, 2023-Ohio-2361.
Alexander filed his motion according to App.R. 25, which requires filing within
ten days after service of the decision that creates a conflict with the decision of another
court of appeals. Alexander identified our decision, denying his motion for
reconsideration, as the decision creating a conflict.
Article IV, Section 3(B)(4) of the Ohio Constitution provides:
Whenever the judges of a court of appeals find that a judgment upon
which they have agreed is in conflict with a judgment pronounced upon the
same question by any other court of appeals of the state, the judges shall
certify the record of the case to the supreme court for review and final
determination.
To certify a conflict pursuant to Article IV, Section 3(B)(4), we must find three
conditions are met, as set forth by the Ohio Supreme Court in Whitelock v. Gilbane Bldg.
Co., 66 Ohio St.3d 594, 613 N.E.2d 1032 (1993).
2.
A51
First, the certifying court must find that its judgment is in conflict with the
judgment of a court of appeals of another district and the asserted conflict
must be "upon the same question." Second, the alleged conflict must be on
a rule of law-not facts. Third, the journal entry or opinion of the certifying
court must clearly set forth that rule of law which the certifying court
contends is in conflict with the judgment on the same question by other
district courts of appeals.
Whitelock at 596. Considering the issues raised on appeal, and our determination of the
motion for reconsideration based on those issues, we find neither the first nor second
condition is met in this case, and decline to certify a conflict.
In his appeal, Alexander asserted the following as one of his assignments of error:
Mr. Alexander's trial counsel rendered constitutionally ineffective
assistance by failing to object to improper and highly prejudicial
questioning and testimony by Mr. Alexander's ex-wife and by failing to
cross-examine her.
In addressing this claim, we applied the standard articulated in Strickland v. Washington,
466 U.S. 668, 684, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See State v. Alexander,
2023-Ohio-2708, -- N.E.3d --, (6th Dist.),~ 62-63.
Pursuant to Strickland, Alexander had to demonstrate error by his counsel and also
that, but for the error, "the result of the proceeding would have been different."
3.
A52
Alexander at~ 63, quoting State v. Bradley, 42 Ohio St.3d 136, 146, 538 N.E.2d 373
(1989). We found Alexander failed to demonstrate the prejudice prong under Strickland,
or that "the deficient performance must have been so serious that, 'were it not for
counsel's errors, the result of the trial would have been different."' Alexander at~ 63,
quoting State v. Welninski, 2018-Ohio-778, 108 N.E.3d 185, ~ 69 (6th Dist.)1, quoting
Bradley at 141-142. Because Alexander's failure to demonstrate prejudice was
dispositive of the error raised on appeal, we found the assignment of error not well-taken.
See Strickland at 687 (failure to demonstrate either prong will defeat a claim of
ineffective assistance of counsel).
Following our decision, Alexander filed a motion for reconsideration, arguing we
erroneously failed to the apply the "harmless-beyond-a-reasonable-doubt" analysis in
Morris to the prejudice prong of his ineffective assistance of counsel claim. We denied
the motion, finding the Strickland standard properly applied to adjudication of the
ineffective assistance of counsel claim.
Alexander now seeks to certify a conflict, based on our denial of his motion for
reconsideration, arguing we failed to incorporate the Morris analysis to the prejudice
prong of his assignment of error, a decision in conflict with decisions of the Third,
1 Welninski, which applied the law regarding costs pursuant to R.C. 2947.23 and State v.
Joseph, 125 Ohio St.3d 75, 2010-Ohio-954, 926 N.E.2d 278, has been superseded by
statute on that issue only, as noted by State v. Braden, 158 Ohio St.3d 462, 2019-Ohio4204, 145 N.E.3d 235, ~ 20-23.
4.
A53
Eighth, and Fifth District Courts of Appeal. Because we find that Alexander
misconstrues the holding in Morris, his proposed conflict presents no conflict of law, and
(
our decision is not in conflict with decisions of the Third, Eighth, and Fifth District
Courts of Appeal, Alexander's motion to certify a conflict must be denied.
1. Morris and its progeny address harmless error review concerning
admission of evidence and not ineffective assistance of counsel.
In Morris, the Ohio Supreme Court dispensed with the distinction between
constitutional and non-constitutional errors under Crim.R. 52(A) and adopted a three-part
test to determine whether the erroneous admission of certain evidence was harmless or
affected a defendant's substantial rights, requiring a new trial. Morris, 141 Ohio St.3d
399, 2014-Ohio-5052, 24 N.E.3d 1153 at 411 26. Morris specifically addressed error in the
admission of evidence, and held that a new trial is necessary only where all of the
following is present: (1) a determination of prejudice as a result of improper evidence; (2)
declaration of a belief that the error was not harmless beyond a reasonable doubt; and (3)
after excising the improper evidence, a determination that a new trial is necessary due to
the impact of the erroneously admitted evidence. Morris at~ 27-29.
The Court provided further guidance, as follows:
Appellate judges upon review determine these issues and decide
which trial errors are harmless and which instead necessitate the remedy of
reversal and new trial. Although the language used by the courts may vary,
5.
A54
the principles themselves are clear: That is, technical error will be ignored
under Crim.R. 52(A); structural error will result in automatic reversal,
[State v.]Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222; and
evidence errors that are prejudicial because they improperly affect the
verdict will be excised from the record with the remaining evidence
weighed to see if there is evidence beyond a reasonable doubt of the
appellant's guilt, [State v.]Rahman, 23 Ohio St.3d [146,] 150, 492 N.E.2d
401 [(1986)]. Therefore, we hold that in determining whether to grant a
new trial as a result of the erroneous admission of evidence under Evid.R.
404(B), an appellate court must consider both the impact of the offending
evidence on the verdict and the strength of the remaining evidence after the
tainted evidence is removed from the record.
Morris at, 33.
Shortly after Morris, the Court again addressed the criminal, harmless error
standard, noting its recent decision in Morris involving "the harmless-error rule in the
context of a defendant's claim that the erroneous admission of certain evidence required a
new trial." State v. Harris, 142 Ohio St.3d 211, 2015-Ohio-166, 28 N.E.3d 1256,, 37,
citing Morris at, 22-24. In Harris, the Court restated the three-part test as follows:
First, it must be determined whether the defendant was prejudiced by
the error, i.e., whether the error had an impact on the verdict. [Morris] at,
6.
A55
25 and 27. Second, it must be determined whether the error was not
harmless beyond a reasonable doubt. [Morris] at ,J 28. Lastly, once the
prejudicial evidence is excised, the remaining evidence is weighed to
determine whether it establishes the defendant's guilt beyond a reasonable
doubt. [Morris] at ,i 29, 33.
Harris at ,i 37. This standard was reiterated in State v. Arnold, 147 Ohio St.3d 138,
2016-Ohio-1595, 62 N.E.3d 153, concerning error in the admission, over objection, of a
written statement.
Most recently, the Court considered whether error in the admission of evidence
required a new trial in State v. Boaston,160 Ohio St.3d 46, 2020-Ohio-1061, 153 N.E.3d
46. In applying the harmless-error analysis of Morris, the Court found the trial court
erred in admitting expert testimony when a written report was not disclosed as required
under Crim.R. 16(K). Boaston at ,i 60. However, the Court then found that there was no
prejudice as a result of the admission of this evidence. Id. at ,i 64. The Court noted the
evidence "did little more than connect dots that were all too readily apparent[,]" and that
the "remaining evidence adduced by the state established [the defendant's] guilt beyond
any reasonable doubt." Boaston at ,i 64, 70.
In each of these cases in which the Ohio Supreme Court addressed the harmlesserror analysis, the application of the test established by Morris was addressed to error in
the admission of evidence, properly preserved for review by objection in the trial court.
7.
A56
In his motion to certify a conflict, Alexander suggests the analysis applies to the
"erroneous" admission of evidence in his case, asserted within his ineffective assistance
of counsel claim, without any authority that would support applying the analysis of
Morris to a claim that was not preserved for purposes of appeal.
2. Harmless error review does not apply to Alexander's ineffective assistance
of counsel claim.
In his assignment of error, Alexander raised the issue of ineffective assistance of
counsel, based on the claim that trial counsel failed to object to Alexander's ex-wife's
testimony, which he argues was "improper and highly prejudicial questioning and
testimony." In his appeal, Alexander argued his ex-wife's testimony constituted
character evidence, propensity evidence, or was introduced to preemptively attack his
credibility. However, because his trial counsel failed to object to the admission of the
testimony, he did not preserve his evidentiary challenge for appeal. Despite this failure to
preserve the issue on appeal, Alexander continues to seek harmless error review of his
evidentiary challenge to his ex-wife's testimony.
On appeal, Alexander characterized his ex-wife's testimony as "improper and
highly prejudicial," but he also acknowledged that some of that testimony was properly
admitted. Specifically, Alexander admitted to lying to his ex-wife about being in the
hospital and acknowledged that the testimony regarding his lie was admissible to
demonstrate consciousness of guilt. Based on his assignment of error, however,
8.
A57
Alexander's argument of prejudice was limited to ineffective assistance of counsel,
placing the burden on Alexander to demonstrate that his deficient trial counsel caused
prejudice meriting a new trial. See Bradley, 42 Ohio St.3d at 144, 538 N.E2d 373
(appellant has the burden of demonstrating prejudice by showing that "but for counsel's
actions, the result of the case would have been different."). In reviewing the assigned
error, we determined that Alexander failed to demonstrate the requisite prejudice.
Alexander at ~ 76-78. This determination was not unlike the initial step of the Morris
analysis, in which a court must first determine whether prejudice exists.
In seeking reconsideration, Alexander argued as if error and prejudice were
presumed, maintaining the issue on appeal was whether the presumed error was
harmless-beyond-a-reasonable doubt. In this sense, Alexander misconstrues the holding
in Morris, skips past the first step of the analysis, and seeks to extend harmless error
review to a claim of ineffective assistance of counsel. In doing so, Alexander would shift
the burden of demonstrating prejudice arising from ineffective assistance of counsel away
from the defendant, contrary to precedent, see Alexander, 2023-Ohio-2708, -- N.E.3d - ,
at ~ 63, and require the reviewing court to rule out harmless error before the defendant
identified any prejudice. This is not the mandate of Morris.
In considering Alexander's assigned error, ineffective assistance of counsel, we
found that Alexander failed to demonstrate prejudice based on his ex-wife's testimony, or
in other words, that Alexander demonstrated that his trial counsel's performance in
9.
A58
failing to object to the testimony or cross-examine his ex-wife had any effect on the
outcome of his case. Therefore, applying the appropriate review, and not the harmless
error review argued by Alexander, Morris did not apply to Alexander's assigned error
regarding ineffective assistance of counsel.
3. The proposed conflict cases are distinguishable.
In addition to misconstruing the applicability of Morris, Alexander proposes
conflict cases that are not truly in conflict.
In State v. Stein, 3d Dist. Logan No. 8-17-39, 2018-Ohio-2621, the Third District
Court of Appeals reversed a conviction where the admission of evidence at trial,
suggesting Stein was a drug dealer, had "no rational relationship" to the charged offenses.
Stein at 'ii 34. Applying the test in Morris, the Third District found the evidence was
prejudicial and, combined with the state's argument that Stein "was not entitled to the
self-defense verdict because he was a drug dealer who was going to retrieve his drugs,"
the evidence could not be deemed as having no effect on the verdict. Id. at 'ii 36. After
excluding the improper evidence, the Court determined the error was harmless beyond a
reasonable doubt. Id.
At Alexander's trial, his ex-wife testified regarding a lie Alexander told to explain
his girlfriend's injuries, introduced to demonstrate consciousness of guilt. Alexander also
testified regarding this lie. As part of her testimony, Alexander's ex-wife testified
regarding the extent to which Alexander maintained the lie, arguing with his ex-wife that
10.
A59
she was the one who was wrong and unreasonable. This testimony of the lie was relevant
and admissible, as acknowledged by Alexander's counsel.
While Alexander's ex-wife also testified that she believed Alexander was
argumentative and always needed to prove he was right, she gave no testimony of prior
bad acts that could have caused the jury to convict based on conduct unrelated to the
offenses charged. Alexander at ,i 68. Furthermore, the state did not argue prior bad acts
in closing arguments, as was the case in Stein. Significantly, the court in Stein applied
the harmless-beyond-a-reasonable-doubt standard of Morris only after determining
admission of the evidence was erroneous and resulted in prejudice. We did not find
Alexander's trial counsel was deficient, leading to admission of improper evidence.
Instead, we found Alexander could not prevail on the prejudice prong, based on the actual
testimony of his ex-wife, which was largely limited to evidence tending to show
consciousness of guilt. Alexander at ,i 75.
In State v. Marshall, 8th Dist. Cuyahoga No. 109633, 2022-Ohio-2666, the Eighth
District Court of Appeals considered an application for reopening the direct appeal, based
on ineffective assistance of appellate counsel. After raising the erroneous admission of
Evid.R. 404(B) evidence in the direct appeal and the Eighth District determining such
error did not merit a new trial, Marshall argued that his appellate counsel was deficient in
not asserting additional error regarding other evidence and in not objecting to the
prosecutor's statements about evidence deemed inadmissible in his direct appeal.
11.
A60
Marshall at ~ 1. The Eighth District denied reopening, noting it "has already found that
Marshall's conviction was supported by overwhelming evidence when addressing his
Evid.R. 404(B) argument in the direct appeal." Id. at~ 16, citing State v. Marshall, 8th
Dist. Cuyahoga No. 109633, 2021-Ohio-4434, ~ 65-66.
In Alexander's case, he identified no Evid.R. 404(B) evidence that was admitted
through his ex-wife, arguing instead that his trial counsel should have objected to her
testimony despite also noting some of that testimony was relevant. Like the court in
Marshall, we did not find the ex-wife's testimony to be the sole basis for conviction and
rejected the notion that the verdict relied only on a credibility determination between
Alexander and his girlfriend, M.C. Instead, we noted the jury had additional evidence,
including the medical record, and the jury entered an acquittal as to one of the two
incidents for which Alexander stood trial, indicating the jury weighed the testimony and
evidence in resolving the credibility issues. Alexander at ~ 78.
Finally, in State v. Bond, 5th Dist. Richland No. 2109CA0033, 2023-Ohio-2361,
the Fifth District Court of Appeals addressed a case on remand from the Ohio Supreme
Court, after reversal, to address assignments of error previously deemed moot. Bond at ~
1. On remand, the Fifth District addressed Bond's evidentiary challenge to other acts
evidence, including a rap song, inadmissible under Evid.R. 404(B). In rejecting the claim
of error, the Fifth District found "any error in the admission of the rap lyrics and music
video to be harmless beyond a reasonable doubt." Bond at~ 54.
12.
A61
As previously iterated in Alexander's case, his ex-wife's testimony concerned the
lie he told regarding the injuries sustained by his girlfriend, introduced as consciousness
of guilt. Alexander at ,i 71. The ex-wife's testimony was limited, and did not address
prior bad acts. At most, Alexander's ex-wife portrayed the former couple's relationship
as contentious, with all references to domestic violence redacted from the exhibit later
admitted as evidence, with the approval of Alexander's trial counsel. Alexander at ,i 82.
Furthermore, the jury acquitted Alexander of one of the assault charges, and found him
guilty of only the charge for which he offered up the lie to his ex-wife. Alexander at ,i
78.
Unlike the proposed conflict cases, the analysis in Alexander's case was limited to
ineffective assistance of counsel, with Alexander failing to demonstrate prejudice under
the test articulated in Strickland. Thus, the proposed conflict cases are wholly dissimilar
from the present case, and Alexander fails to demonstrate a conflict in the application of
the law, based on these cases.
4. Certification requires a conflict in the application of the law.
In order to certify a conflict to the Ohio Supreme Court, we must first find "some
conflict in a rule of law" between our district and another district. Whitelock v. Gilbane
Bldg. Co., 66 Ohio St.3d 594, 598, 513 N.E.2d 1032 (1993). We applied Strickland to
the ineffective assistance of counsel claim raised by Alexander in his direct appeal, and
reiterated this standard in denying reconsideration. The proposed conflict cases concern
13.
A62
harmless error review of erroneously admitted evidence, applying Morris, and not
ineffective assistance of counsel. While both Strickland and Morris require consideration
of prejudice, the review under Strickland does not presume prejudice followed by
harmless error review, pursuant to Morris.
Based on the foregoing, we find no conflict between districts in the application of
law. Alexander's motion to certify a conflict, accordingly, is found not well-taken and
denied.
It is so ordered.
Thomas J. Osowik, J.
JUDGE
Christine E. Mayle, J.
JUDGE
Gene A. Zmuda, J.
CONCUR
14.
JUDGE
A63
Supreme Court of Ohio Clerk of Court - Filed February 20, 2024 - Case No. 2023-1571
State of Ohio
Case No. 2023-1571
v.
ENTRY
Branden Alexander
Upon consideration of the jurisdictional memoranda filed in this case, the court
declines to accept jurisdiction of the appeal pursuant to S.Ct.Prac.R. 7.08(B)(4).
(Lucas County Court of Appeals; No. L-22-1183)
Sharon L. Kennedy
Chief Justice
The Official Case Announcement can be found at http://www.supremecourt.ohio.gov/ROD/docs/
A64
Supreme Court of Ohio Clerk of Court - Filed April 30, 2024 - Case No. 2023-1571
State of Ohio
Case No. 2023-1571
v.
RECONSIDERATION ENTRY
Branden Alexander
Lucas County
It is ordered by the court that the motion for reconsideration of decision not to
accept appeal for review in this case is denied.
(Lucas County Court of Appeals; No. L-22-1183)
Sharon L. Kennedy
Chief Justice
The Official Case Announcement can be found at http://www.supremecourt.ohio.gov/ROD/docs/
A65
FILED
LUCAS COUNTY
2022:JUL. I-2 1M,
~. '4: 21
~
COHHON PLEAS COURT
BERNIE QUILTER
CLERK OF COURTS
IN THE COURT OF COMMON PLEAS, LUCAS COUNTY, OHIO
STATE OF OHIO
Plaintiff,
V.
BRANDEN ALEXANDER
Defendant.
CASE NO:
*
G-4801-CR-0202101678-000
*
*
JUDGMENT ENTRY
*
*
*
JUDGE GARY G COOK
*
*
*
*******
On July 05, 2022 defendant's sentencing hearing was held pursuant to R.C. 2929.19.
Court reporter KELLY WING ATE, defense attorney SARAH THOMAS KOVOOR and the
State's attorney JENNIFER DONOVAN and REBECCA FACEY were present as was the
defendant BRANDEN ALEXANDER, who was afforded all rights pursuant to Crim.R. 32. The
Court has considered the record, oral statements, any victim impact statement and presentence
report prepared, as well as the principles and purposes of sentencing under R.C. 2929 .11, and has
balanced the seriousness, recidivism and other relevant factors under R.C. 2929.12.
Matter heard regarding Defendant's Motion of Indigency filed on behalf of the Defendant on
JULY 5, 2022. Motion well taken and Granted the same.
Matter heard regarding the Defendant's Motion for an Order to Seal Multiple Records for
Appellate Review filed on JULY 5, 2022. Motion taken under advisement with the State of Ohio
granted a period of 2 weeks to file a written response.
The Court finds on JUNE 10, 2022 the defendant was found guilty by A JURY of
FELONIOUS ASSAULT, COUNT 3, a violation of R.C. 2903.11 (A)(l)&(D), a felony of the
2nd degree.
The Court further finds the defendant is not amenable to community control and that
prison is consistent with the purposes of R.C. 2929.11.
It is ORDERED that defendant serve a term of a stated minimum prison term of 7 years
with a maximum indefinite prison term of 10 1/2 years. Pursuant to R.C. 2929.19(B)(2)(f),
.Defendant must not ingest or be injected with a drug of abuse and must submit to random drug-
E-J OU RNALI ZED
G-480!-CR-0202101678-000-BRANDEN ALEXANDER-July OS, 2022-779 • 000004290- Page I
JUL 13 2022
\
A66
testing, the results of which must be negative.
Defendant notified he/she may be eligible to earn days of credit under the circumstances
specified in R.C. 2967.193, and that these days of credit are not automatic, but must be earned in
the manner provided for in R.C. 2967.193. The aggregate days of credit under this section shall
not exceed 8% of the total number of days of the stated prison term.
Defendant notified that under federal law 18 USC 922(g) and state law, as a result of a
felony conviction or a misdemeanor offense of violence conviction against a family or household
member, defendant shall never be able to ship, use, receive, purchase, own, transport, or
otherwise possess a firearm or ammunition and violation is punishable as a felony offense.
It is further ORDERED the defendant is subject to not less than 18 months. but not more
than 3 years man~atory post release control as to count 3, after the defendant's release from
imprisonment pursuant to R.C. 2967.28 and 2929.14.
Defendant given notice of appellate rights under R.C. 2953.08. Defendant notified of not
less than 18 months. but not more than 3 years mandatory post release control as to count 3,
Defendant notified that if post release control conditions are violated the adult parole
authority or parole board may impose a more restrictive or longer control sanction or return a
defendant to prison for up to nine months for each violation, up to a maximum of 50% of the
minimum stated term originally imposed. Defendant further notified that if the violation of post
release control conditions is a new felony, a defendant may be both returned to prison for the
greater of one year or the time remaining on post release control, plus receive a prison term for
the new felony.
Defendant advised of the following pursuant to Senate Bill 201 and R.C.
2929.19(B)(2)(c) and 2967.271: That there is a rebuttable presumption the defendant shall be
released from service of the sentence at expiration of their minimum term or presumptive early
release date, whichever is earlier; That DRC may rebut presumption if, at a hearing held under
2967 .271, DRC makes specified determinations regarding the offender's conduct while confined,
the offender's threat to society, the offenders restrictive housing, if any, while confined, and the
offenders security classification; That if, as described in (ii), DRC at the hearing makes the
specified determinations and rebuts the presumption, they may maintain the offender's
incarceration after the expiration of that minimum term or after that presumptive earned early
release date for the length of time DRC determines to be reasonable, subject to the limitation
specified in section 2967 .271; That the department may make the specified determinations and
maintain the offender's incarceration under the provisions described in divisions (B)(2)(c)(i) and
(ii) of this section more than one time, subject to the limitation specified in section 2967 .271;
That if the offender has not been released prior to the expiration of the offender's maximum
prison term imposed as part of the sentence, the offender must be released upon the expiration of
that term.
Defendant found ineligible for shock incarceration under R.C. 5120.031 or intensive
G-4801-CR-0202101678-000-BRANDEN ALEXANDER-July 05, 2022-779 • 000004290- Page 2
A67
program prison under R.C. 5120.032. If found eligible, the Court made no recommendation
regarding placement.
Defendant is ORDERED conveyed to the custody of the Ohio Department of
Rehabilitation and Corrections. Credit for 426 days is granted as of this date along wtth future
custody days while defendant awaits transportation to the appropriate state institution.
Defendant found not to have nor reasonably may be expected to have the means to pay
the costs of prosecution as authorized by law. All costs, including the costs of prosecution
ordered waived.
Defendant ordered remanded into custody of Lucas County Sheriff for immediate
transportation to appropriate state institution.
G-4801-CR-0202101678-000-BRANDEN ALEXANDER-July 05, 2022-779 • 000004290- Page 3
A68
512
•
1
STATE OF OHIO
2
COUNTY OF LUCAS
ORIGINAL
3
LUCAS COUNTY COURT OF COMMON PLEAS
4
5
STATE OF OHIO,
Plaintiffs,
6
7
8
Case No.CR21-1678
Vs.
BRANDON ALEXANDER,
VOLUME III
Defendant.
9
10
11
Transcript of proceedings held and testimony
12
•
13
taken in the above-entitled cause before the
14
Honorable Gary d. Cook on the 8th day of June,
15
2022.
16
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17
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18
19
APPEARANCES:
On behalf of the State of Ohio:
Rebec.ca Facey
22
Jennifer Donovan
23
On behalf of the Defendant:
24
Sarah Kovoor
25
Rory Biggins
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A69
•
•
•
INDEX
WITNESS
DE
CE
FOE
FCE
McKenzie Chalfant
300/4
383/9
437/9
438/14
Doug DeWeise
439/12
444/10
Julia Bomia
452/22
459/18
466/12
468/4
Natalie Jones
468/15
493/24
506/20
508/19
Raynard Cooper
515/12
521/17
Scott Histed
525/24
530/7
535/23
537/6
Megan Angerer
537/25
Brandon Alexander
563/4
Bruce Little
638/8
Kelly Crippen
645/20
Alisa Roberts
654/22
605/22
666/1
670/16
A70
•
•
ADM
EXHIBITS
ID
State's 1 (CD)
528/17
529/1
State's 2 (photo)
328/16
329/2
State's 2 (photo)
328/16
329/2
State's 3 (photo)
328/16
329/2
State's 4 (photo)
328/16
329/2
State's 5 (med records) 332/12
333/5
State's 6 (photo)
363/2
363/16
State's 7 (photo)
363/2
363/16
State's 8 (photo)
363/2
363/16
State's 9 (photo)
363/2
363/16
State's 10 (photo)
364/22
363/16
. State's 11 (photo)
376/23
377/20
State's 12 (photo)
376/23
377/20
State's 13 (FB post)
380/2
OBJ
State's 14 (csb records) 456/1
· 459/16
State's 15-34(photos)
486/25
554/20
State's 35 (messages)
544/16
State's 35A (redacted)
700/21
545/10
700/21
Defendant's A (med)
693/15
Defendant's B (texts)
•
545/11
576/6
Defendant's C (photo)
584/16
Court's 1 (question)
791/1
Court's 2 (answer)
802/7
w/d 692/3
693/15
A71
537
••
1
MS. DONOVAN: Thank you.
2
THE COURT:
3
MS. KOVOOR: I'm sorry, Your Honor?
4
THE COURT:
5
MS. KOVOOR: Right.
8
•
BY MS. KOVOOR:
Q.
Just briefly, Officer, you mentioned injuries
9
that can lead to death, correct, that could escalate in
10
a domestic violence case, and. it could lead to death?
11
A.
Yes, ma'am.
12
Q.
You don't have any other information but what
13
McKenzie Chalfant gave to you as to who did these
14
injuries, correct?
15
A.
That's correct.
16
Q.
All you know is that they were severe injuries.
17
A.
Yes, ma'am.
18
Q.
Okay.
19
•
Within the context of Redirect.
FURTHER CROSS EXAMINATION
6
7
Within the context of Redirect.
THE COURT:
20
down.
21
can go ahead.
Thank you.
Sir, you can step
If you are ready �ith the next witness you
22
MS. FACEY: The State calls Megan Angerer.
23
(Whereupon, Megan Angerer was sworn by the
24
25
Court Reporter. )
DIRECT EXAMINATION
A72
538
•
1
•
FACEY:
2
Q.
Good morning.
3
A.
Morning.
4
Q.
Could you please introduce yourself to the jury.
5
A.
Yes.
6
Q.
How old are you, Megan?
7
A.
I am
8
Q.
What do you do for a living?
9
A.
I am a teacher at Monroe High School.
10
•
BY MS.
My name is Megan Angerer.
I will be 38 tomorrow,
37.
I teach
10th grade civics and economics.
11
Q.
Do you know the Defendant, Brandon Alexander?
12
A.
I do.
13
Q.
How long with the two of you married?
14
A.
Three years.
15
Q.
And you are now divorced?
16
A.
Correct.
17
Q.
When did you get divorced?
18
A.
I think it ~as finalized in September of 2020.
19
Q.
Do you share any children together?
20
A.
Yes,
21.
Q.
And Camden is a daughter?
22
A.
Yes.
23
Q.
Okay.
24
25
He is my ex-husband.
we have a four-year old Camden.
Megan, how would you describe your
relationship with Brandon Alexander overall?
A.
Tumultuous.
Aggressive.
I would say that he was
A73
539.
•
1
more worried about his reputation than -- than anything.
2
He's angry,
3
relationship.
4
5
•
•
Q.
Okay.
and that caused a lot of problems in our
And you said aggressive.
Brandon
Alexander was aggressive?
6
A.
Correct.
7
Q.
How old were you when the two of you got
8
together?
9.
A.
22.
10
Q.
Okay.
11
A.
It was at Eclipse nightclub downtown Toledo.
12
Q.
Okay.
13
And how did the two of you meet?
I
And was Brandon a student at the
University of Toledo at the time?
14
A.
I believe so.
15
Q.
You say you believe so.
16
A.
I'm not sure of the dates, but Brandon was at one
Help us to understand.
17
point released as a student from the University of
18
Toledo.
1 9.
Q.
Okay.
20
A.
So I'm not sure the exact date in which he -- we
21
met, and he was not a student anymore.
22
always truths given.
23
Q.
24
you?
25
A.
There was not
Brandon Alexander wasn't always truthful with
Correct.
A74
540
•
•
1
2
Q.
player at the University of Toledo?
3
A.
Correct.
4
Q.
You later came to find out that was not in fact
5
true?
6
A.
Correct.
7
Q.
That he had been kicked off the football team?
8
A.
Correct.
9
Q.
And kicked out of school.
10
A.
Correct.
11
Q.
You said the two of you share a four-year old
12
daughter.
13
arrangements you have with the Defendant?
14
A.
Can you tell us about the co parenting
I initiated -- I got a lawyer and initiated a
15
parenting agreement with the Court in Monroe County.
16
This -- because things were tumultuous,
17
without an agreement with the Court.
not going well
So the agreement that we have in court now is
18
19
every other weekend and Wednesday for two hours was the
20
agreement that was decided.
21
22
•
When you met he put himself out to be a football
Q.
Okay.
So just to be clear, Camden lives with you
full-time?
23
A.
Correct.
24
Q.
But there is an agreement through
the Court that
!
25
Brandon, as Camden's father,
would see her every other
A75
541
•
1
2
A.
Correct.
3
Q.
Okay.
4
5
•
And where would you and the Defendant meet
to exchange your daughter?
A.
I would drive 23 South to Sylvania.
6
BP gas station.
7
Brandon picked kind of a remote location.
8
safe meeting him there,
9
Sylvania, Ohio right off 23 off the exit.
We met at a
That was -- that was changed after
I didn't feel
so I changed it to BP in
10
Q.
A more well traveled spot.
11
A.
Yeah.
12
Q.
And how would you and Brandon communicate about
13
exchanges for your daughter or any information you need
14
to share regarding Camden?
15
A.
There were phone calls and text messages, but
16
that wasn't working well.
17
Court they suggested -- well, my attorney suggested
18
using an app called AppClose.
19
parenting.
20
Conversations are logged like in pdf form in case I
21
needed to bring any documentation to Family Court.
22
we were going through that other than phone calls that
23
he made to our daughter, Camden.
24
•
weekend and every Wednesday evening?
25
Q.
Okay.
And when we went to Family
It's specifically for
You can put schedules in there.
So
And that _app that you just referenced that
is something that the Court suggested as a way to keep
A76
542
•
1
A.
3
Camden.
4
topic of our daughter, and using this app made me feel
5
safer.
6
Q.
Okay.
7
A.
I know who she is.
8
Q.
Okay.
10
Yes.
Brandon was having some trouble staying on
Megan, do you know McKenzie Chalfant?
Did you have occasion to meet her while
she was dating Brandon?
A.
Yeah,
he let me know he had a girlfriend.
And
11
one day she was with him at drop off at the BP when I
12
was dropping Camden off, and I asked him if I could
13
introduce myself,
14
Q.
15
McKenzie?
16
A.
Okay.
and I did.
Why did you want to introduce yourself to
She was around my daughter and I thought that's
17
appropri~te.
18
someone
19
thought it was appropriate for me to introduce myself as
20
the mother,
21
I should know her.
We're adults.
That's what you do when
she was living with him, with Brandon, and I
and just, you know,
know who she is.
I mean
22
Q.
Sure.
23
A.
We didn't have any conversations other than that.
24
•
As well as keep the conversations about
2
9
•
track of all communications?
25
And did you and McKenzie get along well?
There were no other times I spoke to her after that .
Q.
Okay.
A77
543
1
••
•
So during parenting time or the time that I was
2
parenting with Brandon no, we didn't have any
3
relationship other than that was his girlfriend.
4
Q.
Got you.
5
A.
You're welcome.
6
Q.
I want to direct your attention to April 28,
7
2021,
8
A.
Uh-huh.
9
Q.
If you will recall,
Thank you.
that was a Wednesday?
did the Defendant meet you at
10
your regularly scheduled time at BP in Sylvania to pick
11
up your daughter?
12
A.
He did not.
13
Q.
Why not?
14
A.
Brandon communicated to me at 3:36 p.m. on
15
Wednesday the 28th that he would not be able to get our
16
daughter for the arranged pickup time.
17
18
Q.
And 3:36.
What time were you expected to be
meeting him there at the BP?
19
A.
4:00 that day.
20
Q.
Okay.
21
22
23
•
A.
Were you already en route to the BP when
you received his message?
A.
Correct.
In fact I woke our dau~hter up from a
nap so it was kind of like -- this is not good.
24
Q.
Fr u' st rated?
25'
A.
Frustrated because I woke up a three-year old
;
'
A78
544
•
1
2
3
4
from a nap,
Q.
A.
Correct ..
MS.
6
witness?
9
FACEY: Your Honor, may I approach the
THE COURT:
BY MS.
Q.
You may.
FACEY:
Handing you what has been previously marked
10
State's Exhibit 35,
11
Do you recognize that?
if you want to take a look at that.
12
A.
Yes .
13
Q.
What is it?
14
A.
The first page here?
15
Q.
The entire document.
16
A.
The entire document.
17
18
19
•
I was on the way there.
that you previously described to us?
5
8
yes,
And Brandon contacted you through that CloseApp
7
•
and so,
Is that correct?
Okay.
This is the pdf
print off of the AppClose conversations with Brandon.
Q.
And those include conversations between you and
Brandon on April 28,
2021?
20
A.
Correct.
21
Q.
Including the message that you just ment.ioned?
22
A.
Correct.
23
Q.
Are these a fair and accurate representation of
24
25
the messages between you and Brandon?
A.
Yes.
A79
545
•
1
Q.
2
correct?
3
A.
Correct.
4
Q.
You have not made any changes or alterations to
5
6
There is no one else included in these messages,
these messages?
A.
No.
MS.
7
THE COURT:
9
Defense?
10
MS. KOVOOR: Object, Your Honor.
11
THE COURT:
12
received.
13
MS.
14
BY MS.
FACEY:
15
Q.
Megan,
Objection is overruled.
FACEY: Thank you,
Be
Your Honor.
I want to -- I tabbed one of the pages
16
since the pages aren't numbered in this document.
17
is one tab that I believe starts the conversation on
18
April 28,
19
for us from Brandon Alexander?
20
•
at this time the
State moves for admission of Exhibit 35.
8
•
FACEY: Your Honor,
A.
2021.
There
Can you please read that first message
It says Brandon Alexander on 4-28,
2021,
21
3:36 p.m. texted.
22
were in a car accident.
23
am waiting to be discharged and don't know how long it's
24
going to take.
25
Q.
I am at the hospital.
McKenzie and I
I won't be able to get her.
How did you respond when Brandon Alexander told
I
A80
546
•
1
A.
Frustrated.
3
Q.
And you go on to explain that you had woken your
I responded, what?
daughter up from a nap?
5
A.
Correct.
6
Q.
You in fact are frustrated.
On the following
7
page, three quarters of the way down,
8
from Brandon 4-28 at 3:42 p.m.?
there is a message
9
A.
Okay.
10
Q.
Can you please read that for us,
that exchange?
11
A.
Brandon Alexander on 4-28,
2021,
3:42 p.m. texted
12
yeah,
It is ridiculous.
You a piece of
13
work.
14
Q.
15
a car accident.
I couldn't even find my phone .
How do you respond one minute later -- or excuse
me, within the same minute?
16
A.
When was the accident?
17
Q.
How does he respond within the same minute?
18
A.
Get off here with that BS.
19
20
21
•
Really?
2
4
•
you that he had been in a car accident with McKenzie?
I could be dead or
not texted you at all.
Q.
Little dramatic for somebody that we know was not
in fact in a car accident,
right?
22
A.
Correct.
23
Q.
How did you respond to that message?
24
A.
When was the accident?
25
Q.
And in fact you asked Brandon three times in this
A81
547
•
1
exchange when the car accident happened.
2
A.
Uh-huh.
3
Q.
Did he ever give you an answer?
4
A.
No.
5
Q.
Instead he responded with insults and callirig you
i
6
crazy?
7
A.
Correct.
8
Q.
Further down on that second page after the ~ab,
I
9
I
there is a message from Brandon on April 28,
2021,; at
10
3:51 p.m.
Can you please read that for the jury.
11
A.
on 4-28,
12
texted,
13
because I couldn't leave to get her.
14
be out on time so goodbye.
Brandon Alexander,
2021,
I
3:51 p.m.J
I
•
15
Q.
and I literally have been pissed and goingl crazy
I
I thought I would
Brandon is telling you that he's so upset, roing
16
crazy at the hospital, because he can't possibly leave
17
to get his daughter,
is that right?
18
A.
Correct.
19
Q.
But we know he was not in fact in a car accident.
20
A.
Correct.
21
Q.
He had not been admitted to the hospital.
22
A.
Correct.
23
Q.
And if he wanted to he could have left to g~t
I
24
•
25
your daughter?
A.
Yes.
• i
A82
548
•
1
2
admitted to the hospital, don't you?
A.
Correct.
4
Q.
Tell us about that.
5
A.
So Brandon -- I asked him at first if it was
6
drunk driving that caused this accident.
7
goes on to talk about -- about family members of mine
8
that he says are drunk -- that they drink and drive,
9
then he sends me a photograph of himself.
11
Q.
And then he
and
And that photograph is actually on the very first
page of State's Exhibit 35, correct?
12
A.
Correct.
13
Q.
What is that a photograph of?
14
MS. KOVOOR: Objection.
15
THE COURT:
Overruled.
16
A.
17
Brandon.
18
Q.
He has a tag on his shirt, doesn't he?
19
A.
Correct.
20
Q.
What do you say about a tag?
21
A.
I say, that's a visitor sticker.
22
Q.
You were calling him out for actually not being
23
•
And you call him out about not actually being
3
10
•
Q.
It is a photograph Brandon -- a photograph of
admitted but instead being a visitor at the hospital?
24
A.
Correct .
25
Q.
Does Brandon acknowledge you are right about
•
A83
549
1
that?
2
A.
No.
3
Q.
And that final text exchange on the afternoon of
5
April 28, 2021, ends with you saying where is your wrist
�
band? That looks like a visitor sticker.
6
You're not buying what Brandon Alexander is
4
7
•
selling, are you, Megan?
8
A.
Not at all.
9
Q.
And then there's a break in communication there,
that last text was at 4:05 p.m.
11
you at 10:16 p.m. that same night, April 28, 2021.
12
it sounds like there has been a phone call conversation
13
in between based on your text.
14
that phone call.
15
A.
Yes.
And
Can you tell us about
So Brandon would call Camden, our daughter,
16
each evening before bed to talk to her, and he did this
17
night as well on the 28th.
18
•
The next text is from
10
And he yelled at me most of the phone call
19
because he
our daughter was asking him why didn't you
20
get me.
21
dare you tell my daughter that I was in a car accident.
22
How dare you tell my daughter that.
23
get her.
24
Q
How did you respond to Brandon?
25
A.
Like I often respond with please don't yell at me
And he then proceeded to yell at me saying how
I didn't want to
And in fact I didn't do those things.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.