         [Cite as State v. Brand, 2016-Ohio-7456.]

                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




STATE OF OHIO,                                       :   APPEAL NO. C-150590
                                                         TRIAL NO. B-1402577A
        Plaintiff-Appellee,                          :
                                                            O P I N I O N.
  vs.                                                :

BARON BRAND,                                         :

    Defendant-Appellant.                             :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: October 26, 2016



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald W.
Springman, Chief Assistant Prosecuting Attorney, for Plaintiff-Appellee,

The Law Office of Wendy R. Calaway, Co., LPA, and Wendy R. Calaway, for
Defendant-Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS




SYLVIA S. HENDON, Presiding Judge.

       {¶1}     In this appeal, defendant-appellant Baron Brand challenges his

convictions    for   aggravated   murder,   felonious   assault   with   accompanying

specifications, aggravated robbery, and two counts of having a weapon while under a

disability.

       {¶2}    He argues that his convictions were not based on sufficient evidence

and were against the manifest weight of the evidence; that the trial court improperly

admitted other-acts evidence; that the trial court erred in reading back to the jury

portions of testimony from a witness for the state; that the prosecutor engaged in

misconduct that deprived Brand of a fair trial; that he had received ineffective

assistance from his trial counsel; and that the trial court erred in denying his motion

to suppress.

       {¶3}    For the following reasons, the judgment of the trial court is affirmed.

                                  Factual Background


       {¶4}    On May 3, 2014, Keelin Broach and Beyoncia Willis had been staying

at the apartment of Broach’s cousin, Courtney McKinney. At approximately 1 a.m.,

two men forced their way into McKinney’s apartment at gunpoint to rob Broach. The

men murdered Broach and Willis, but McKinney was able to escape, despite having

been shot. McKinney later identified the two men from photographic lineups as

Baron Brand and Devin Isome.

       {¶5}    For his role in these crimes, the state issued an indictment charging

Brand with two counts of aggravated murder, two counts of murder, two counts of

felonious assault, two counts of aggravated robbery, and two counts of having a



                                               2
                       OHIO FIRST DISTRICT COURT OF APPEALS



weapon while under a disability. With the exception of the two counts of having a

weapon while under a disability, all counts carried accompanying weapon

specifications and a repeat-violent-offender specification.1

       {¶6}    Prior to trial, Brand filed a motion to suppress McKinney’s eyewitness

identification. The trial court overruled Brand’s motion. The case proceeded to a

jury trial, where the following evidence was introduced.

       {¶7}    On the evening of May 2, 2014, Courtney McKinney had been at her

apartment with Broach and Willis.          Broach was a known drug dealer and had

brought drugs to McKinney’s apartment. McKinney left Broach and Willis at her

apartment while she went out with a friend to several bars. Upon returning home in

the early hours of May 3, McKinney entered the interior lobby of her apartment

building. As she began to walk up the stairs to her second-floor unit, she noticed

someone, whom she later identified as Devin Isome, at the top of the stairs. Isome

pulled out a gun and stated “Where the money at?” She told him that she only had

$50 and a credit card, to which Isome responded, “Bitch, I don’t want no $50 or no

credit card.” He then indicated towards her apartment and asked, “Who in here?”

Isome was wearing a black hoodie and jeans. The hoodie was tied under his chin, but

McKinney had no problem seeing his face.

       {¶8}    McKinney attempted to run back outside, but a second person, later

identified by McKinney as Brand, approached her from the basement as she was on

the second step. Brand had on a white hoodie, also tied under his chin. He stated,

“Nah, we going up in here,” and he put a gun to her back as he walked her up the



1 The indictment also charged Brand with trafficking in heroin, possession of heroin, and two
additional counts of having a weapon while under a disability. Brand separately pled guilty to
those offenses, and was convicted and sentenced by the trial court. He has not challenged his
convictions for those offenses in this appeal.


                                                  3
                     OHIO FIRST DISTRICT COURT OF APPEALS



stairs. Isome put his gun to her head as she unlocked her apartment door. The lights

were on in McKinney’s apartment, and Broach and Willis were lying on a couch.

Brand and Isome ordered McKinney onto a couch and Broach onto the ground, and

they repeatedly demanded money. Broach told them that he did not have money,

but that they could have his dope that was on the table. Brand took items off the

table and tied Broach’s hands behind his back with the jogging pants that Broach had

been wearing. Brand then placed a phone call over speakerphone and told the

person whom he had called, “It aint no money.” McKinney heard the other person

respond, “Kill them,” and she immediately ran into her bedroom and jumped out the

window. She heard a gunshot as she was jumping, and she realized that she had

been shot in the arm once she hit the ground. McKinney heard two more gunshots

as she ran to the nearest house with lights on.

       {¶9}   A resident of the house to which McKinney had fled called the police,

and McKinney was taken to a hospital. Cincinnati Police Officer Thomas Stanton had

been one of the responding officers, and he had followed a blood trail leading to the

side of McKinney’s apartment building. He saw that the blood trail had originated

from a broken second-story window.          Officer Stanton secured the apartment

building. The front door to McKinney’s apartment was slightly ajar, but Officer

Stanton had to force it open because a body had been obstructing it. Upon entering,

Officer Stanton immediately saw two deceased victims. Both Broach and Willis had

been shot in the head and had died from the resulting injuries.

       {¶10} Criminalist Kathy Newsome processed the crime scene in McKinney’s

apartment. She found drug paraphernalia, specifically a baggie of marijuana, a scale,

and a box of plastic bags. She also found several pieces of copper jacketing and shell




                                                  4
                       OHIO FIRST DISTRICT COURT OF APPEALS



casings.     Criminalist Newsome identified the ammunition as Dynamic Research

Technologies (“DRT”), a brand she had never before encountered. Kevin Lattyak, a

firearms supervisor with the Hamilton County Coroner’s Officer, examined the

casings that had been collected. In Lattyak’s opinion, the casings had been fired

from a semi-automatic handgun, specifically a Bersa.

          {¶11} Detectives Jake Wloszek and Colin Vaughn interviewed McKinney at

the hospital around 6:30 a.m. on May 3, 2014.          Although McKinney’s medical

records indicated that she had been intoxicated, McKinney stated that she had only

consumed two alcoholic beverages and had not been drunk.          Detective Vaughn

noticed that McKinney was very upset, but did not seem intoxicated. McKinney told

the detectives that the first suspect that she had encountered was a male black,

approximately 5’8”, and 21-22 years of age. She described the second suspect as a

light-skinned black male, shorter than the first suspect, and as having been 20-28

years old.

          {¶12} Detective Vaughn again interviewed McKinney on May 9, 2014. In this

interview, McKinney described the first suspect as a male black that was 5’6” or

taller.    She described the second suspect as again being shorter than the first,

approximately 5’3”, stocky with a yellow complexion, and around 22-23 years old.

Testimony revealed that Isome was actually 6’4” and was several inches taller than

Brand.

          {¶13} Detective Vaughn had developed Brand as a suspect following Brand’s

arrest on unrelated charges, and he prepared a photographic lineup containing a

picture of Brand for McKinney to examine. Vaughn was aware of the discrepancies

between Brand’s height and the heights contained in McKinney’s various




                                             5
                     OHIO FIRST DISTRICT COURT OF APPEALS



descriptions when he made the lineup, but he believed that McKinney’s ability to

accurately judge height had been affected because she had been looking down on

Brand from the stairwell when she first saw him. Detective Terry McGuffey served as

blind administrator and showed McKinney the photographic lineup. Upon seeing

photograph number three, McKinney began to cry and stated, “That’s him. That’s

that motherfucker right there. I’m a thousand percent that that’s him.” Brand was

the subject of photograph number three.      Upon seeing photograph number six,

McKinney responded that the picture “looks similar to the tall one. I’m iffy about

him.”    Detective Vaughn did not construe McKinney’s statements to be an

identification of the person in photograph number six as one of the suspects, so he

conducted no follow-up investigation of that person.

        {¶14} McKinney developed Isome as a suspect through her own

investigation, and she showed Detective Vaughn a picture of Isome obtained from

Facebook. On May 12, 2014, Detective Vaughn had a blind administrator show

McKinney two additional photographic lineups. McKinney identified no persons in

the first lineup. But in the second lineup that she was shown, McKinney identified

Isome as the first suspect that she had encountered.

        {¶15} Christopher Hill testified at trial that he had been incarcerated on

various charges at the same time that Brand had been incarcerated for the offenses in

this case. Hill and Brand had a conversation in jail about their respective cases.

Brand told Hill that a woman named Courtney had arranged with him to set up

Broach for a robbery. According to Brand, he had followed Courtney home from a

club with the intention of taking Broach’s money and heroin. Brand further told Hill

that mayhem had ensued, and that he had shot at Courtney, who had fled by jumping




                                             6
                      OHIO FIRST DISTRICT COURT OF APPEALS



out a window. Before he left with a couple ounces of heroin and a couple thousand

dollars, Brand shot Broach and another woman to eliminate any witnesses.

       {¶16} Evidence was further presented to the jury that Brand had been

arrested on unrelated offenses on May 8, 2014. As part of that arrest, a search

warrant was executed at Brand’s residence at 5460 Beechmont Avenue.            When

executing the warrant, officers discovered a large amount of heroin, approximately

$1,900, a .380 Bersa handgun, and a box of DRT .380 cartridges. Detective Vaughn

testified that he had never seen a DRT head stamp on a cartridge case prior to this

case, and that Brand had admitted that the DRT ammunition, the weapon, and the

heroin found at the Beechmont residence belonged to him.

       {¶17} Over Brand’s objection, the state presented testimony from Laurie

Bellow, a retired detective from the Forest Park police department. Bellow testified

that in 2010, she had been dispatched to the scene of a robbery. In that case, money,

a cell phone, and marijuana had been stolen from an individual known to sell drugs,

and the victim had been shot during the robbery. Bellow explained that she had

developed Brand as a suspect in that case, and that he had ultimately been convicted

of the resulting charges.

       {¶18} Brand presented testimony from Melissa Berry, an expert in the

psychology associated with eyewitness identification. Although Berry could not state

with certainly that McKinney’s eyewitness identification had been inaccurate, she

explained that there were many factors present in this case that could have had an

impact on the identification. She testified that McKinney’s attention was divided

between two suspects; that both suspects had their faces somewhat obscured by a

hood; that witnesses often focus on the presence of a weapon rather than focus on




                                             7
                      OHIO FIRST DISTRICT COURT OF APPEALS



other features of a suspect; and that severe stress can impair a person’s memory,

causing the person to imbed information learned post-event into their memory of the

actual event. She further explained that both intoxication and exposure time can

affect an identification.

       {¶19} The jury returned verdicts finding Brand guilty of all offenses and

specifications, and the trial court separately found Brand to be a repeat-violent

offender. Various offenses merged for purposes of sentencing, and the trial court

issued an entry convicting Brand of, and imposing sentence on, the following

offenses: two counts of aggravated murder, felonious assault with accompanying

weapon and repeat-violent-offender specifications, aggravated robbery, and two

counts of having a weapon while under a disability.

                              Sufficiency and Weight


       {¶20} In his first assignment of error, Brand argues that his convictions were

not supported by sufficient evidence and were against the manifest weight of the

evidence.

       {¶21} When reviewing the sufficiency of the evidence, this court must

determine whether, after viewing all probative evidence and reasonable inferences in

the light most favorable to the prosecution, a rational trier of fact could have found

all the elements of the offenses proven beyond a reasonable doubt. See State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). In contrast, when

reviewing the manifest weight of the evidence, we must weigh the evidence and

consider the credibility of the witnesses to determine whether the jury lost its way

and committed such a manifest miscarriage of justice that Brand’s convictions must

be reversed. See State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).



                                             8
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶22} Brand was convicted of two counts of aggravated murder, aggravated

robbery, felonious assault, and having a weapon while under a disability.          He

advances two specific arguments in support of this assignment of error. First, he

challenges McKinney’s identification and contends that there was insufficient

evidence to prove that he was involved in these crimes.

       {¶23} Extensive evidence was presented regarding McKinney’s identification

of Brand. Although Brand had a hood tied around his face during the commission of

these offenses, McKinney testified that his face had not been obscured and that she

had been able to clearly view his facial features. Evidence further demonstrated that

McKinney had time to see Brand both in the lobby and stairwell of her apartment

building, and in her apartment, and that both areas were well lit. Further, while

evidence was presented regarding the discrepancies in McKinney’s description of

Brand, particularly with respect to his height, the jury was also presented with

testimony that McKinney’s observations could have been affected by the fact that she

had first encountered Brand while she stood a few steps above him.

       {¶24} Defense counsel vigorously cross-examined McKinney and highlighted

the discrepancies in her identification, but the state presented additional evidence at

trial supporting her identification of Brand as the perpetrator of these offenses. The

jury heard evidence that DRT was not a common brand of ammunition, but that it

had been used in the commission of these offenses, that it had been found in Brand’s

apartment, and that Brand had admitted ownership of the ammunition found in his

apartment. The jury was additionally presented with testimony from Christopher

Hill that Brand had admitted his role in these offenses, as well as described in

significant detail to Hill what had occurred. The jury was in the best position to view




                                              9
                      OHIO FIRST DISTRICT COURT OF APPEALS



the credibility of these witnesses, and we will not second guess its determination that

McKinney’s identification of Brand was credible.

       {¶25} Brand further argues that the record contains no evidence that

anything had been taken from McKinney’s apartment when Broach and Willis were

killed. The record belies this contention. McKinney testified that she saw Brand

grab items off of a table in her apartment. And Christopher Hill testified that Brand

had told him that he had taken both heroin and money from McKinney’s apartment.

       {¶26} We find that Brand’s convictions were supported by both the

sufficiency and the weight of the evidence. The first assignment of error is overruled.

                                 Other-Acts Evidence


       {¶27} In his second assignment of error, Brand argues that he was deprived

of his right to a fair trial when the trial court erred by admitting other-acts evidence

from retired detective Laurie Bellow, who testified that Brand had previously been

involved in the robbery and shooting of a known drug dealer in 2010. We review the

trial court’s admission of evidence for an abuse of discretion. See State v. Noling, 98

Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, ¶ 43.

       {¶28} Generally, under Evid.R. 404(A), evidence of a person’s character is

not admissible to prove action in conformity therewith. However, under Evid.R

404(B), evidence of other crimes may be admissible to show “proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident.” Here, the state had sought to admit evidence of Brand’s prior crime to

establish his identity as the perpetrator of the instant offense.

       {¶29} Other-acts evidence may be used to prove identity when the evidence

establishes a defendant’s modus operandi, or behavioral fingerprint. State v. Lowe,



                                               10
                      OHIO FIRST DISTRICT COURT OF APPEALS



69 Ohio St.3d 527, 531, 634 N.E.2d 616 (1994). When used for this purpose, the

other-acts evidence proves the defendant’s identity by demonstrating that the

defendant “has committed similar crimes and that a distinct, identifiable scheme,

plan, or system was used in the commission of the charged offense.” Id., quoting

State v. Smith, 49 Ohio St.3d 137, 141, 551 N.E.2d 190 (1990). The other acts need

not be identical to the crime in question, but they must “be related to and share

common features.” Id.

       {¶30} The other-acts evidence introduced in this case established that Brand

had been convicted of charges related to his role in the shooting and robbery of a

known drug dealer in 2010. Other than the fact that both Brand’s prior crime and

the instant offense involved the robbery of a known drug dealer, the offenses shared

little in common. While the victim of the prior offense was shot, the victims in the

instant case were executed to prevent them from becoming witnesses to the crime.

The robbery of a drug dealer is not an uncommon crime. Brand’s involvement in two

such crimes, with the absence of any other common features linking the offenses, did

not establish a unique scheme or plan identifiable only to him. We hold that the trial

court abused its discretion in admitting the other-acts evidence.

       {¶31} However, in light of the other evidence of Brand’s guilt, as described in

our resolution of the first assignment of error, the admission of this evidence did not

result in prejudicial error or affect the outcome of the case. See State v. Bryan, 101

Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 433, ¶ 127. Brand was not deprived of

his right to a fair trial. The second assignment of error is overruled.




                                               11
                      OHIO FIRST DISTRICT COURT OF APPEALS


                   Read Back of Testimony During Deliberations


       {¶32} In his third assignment of error, Brand argues that the trial court erred

in permitting a read back of portions of testimony from the state’s witness Courtney

McKinney during deliberations. Brand argues on appeal that this read back allowed

the jury to consider McKinney’s testimony out of context and to give undue emphasis

to her testimony over that offered by other witnesses.

       {¶33} Upon request, a trial court is permitted to read back all or a portion of

any witness’ testimony to the jury after deliberations have begun. State v. Black, 85

Ohio App.3d 771, 780, 621 N.E.2d 484 (1st Dist.1993). We review a trial court’s

decision to read back testimony to the jury for an abuse of discretion. State v.

McCrary, 1st Dist. Hamilton No. C-080860, 2009-Ohio-4390, ¶ 32.

       {¶34} During deliberations, the jury submitted a question to the trial court

asking when and what Courtney McKinney had said about Brand each time she gave

her description. Over Brand’s objection, the trial court elected to read back to the

jury portions of McKinney’s testimony pertaining to her description and

identification of Brand. We hold that the trial court did not abuse its discretion in

reading back this testimony. Identification of Brand was a crucial issue in the case.

See id. And Brand’s concerns that the read back of McKinney’s testimony placed

undue emphasis on the testimony and encouraged the jury to favor it over testimony

from other witnesses are without merit. The trial court instructed the jury that it was

still to consider all the evidence in the case, as well as the court’s instruction on the

law. And as the Ohio Supreme Court has noted, “ The jury's recollection of the

witness cannot be assumed to have so diminished as to give the reading of the




                                               12
                     OHIO FIRST DISTRICT COURT OF APPEALS



testimony credibility that was not present when it was originally given.” State v.

Berry, 25 Ohio St.2d 255, 263, 267 N.E.2d 775 (1971).

       {¶35} The third assignment of error is overruled.

                              Prosecutorial Misconduct


       {¶36} In his fourth assignment of error, Brand argues that he was deprived

of a fair trial due to misconduct committed by the prosecutor.

       {¶37} Brand first argues that the prosecutor made multiple improper

comments during closing arguments. To have deprived a defendant of a fair trial, a

prosecutor’s remarks must have been improper and have prejudicially affected the

defendant’s substantial rights.   State v. Smith, 130 Ohio App.3d 360, 366, 720

N.E.2d 149 (1st Dist.1998). The prosecutor is generally entitled to a wide degree of

latitude during closing argument. State v. Smith, 14 Ohio St.3d 13, 470 N.E.2d 883

(1984). The prosecutor’s statements must not be viewed in isolation, but in light of

the entire closing argument. State v. Kelly, 1st Dist. Hamilton No. C-010639, 2002-

Ohio-6246, ¶ 22.

       {¶38} We have reviewed each remark made by the prosecutor during closing

argument that Brand has cited. Brand failed to object to any of these comments, and

consequently has forfeited all but plain error. Id. We find that a majority of the

remarks cited by Brand were not improper. And to the extent that any remark could

be considered improper, it certainly did not amount to plain error affecting the

outcome of the proceedings.

       {¶39} Brand next argues that the prosecutor elicited improper hearsay

testimony from McKinney when she testified that she had heard someone on

speakerphone tell Brand to “kill them.” But because this testimony was used not to



                                             13
                     OHIO FIRST DISTRICT COURT OF APPEALS



prove the truth of the matter asserted, but to explain why McKinney jumped out of a

window, it was not improper. The prosecutor also mentioned this telephone call and

instruction to “kill them” during closing argument, arguing that Brand had intended

to kill Broach and Willis because he had been instructed to do so. But Brand failed to

object to this comment, and it did not amount to plain error.

       {¶40} Brand further contends that the prosecutor improperly elicited

opinion testimony from Detective Vaughn in violation of Evid.R. 703. He argues that

the prosecutor used Detective Vaughn as an expert witness on drug trafficking. We

find the prosecutor’s questioning of Detective Vaughn regarding drug terminology

and value to be entirely proper. The detective was testifying based on his knowledge

and experience as a police officer, and not as an expert witness. We further find no

error in the additional testimony from Detective Vaughn cited by Brand.           The

testimony was based on Vaughn’s investigation, observations, and knowledge and

experience as an officer.

       {¶41} We hold that Brand was not deprived of a fair trial due to prosecutorial

misconduct, and we overrule the fourth assignment of error.

                               Ineffective Assistance


       {¶42} In his fifth assignment of error, Brand argues that he received

ineffective assistance from his trial counsel. He contends that his counsel failed to

object to numerous instances of hearsay and prosecutorial misconduct, but he

provides no citation to the record of specific examples of ineffectiveness.

Consequently, we disregard this assignment of error pursuant to App.R. 12(A)(2).

See State v. Rucker, 1st Dist. Hamilton No. C-110082, 2012-Ohio-185, ¶ 32.




                                             14
                     OHIO FIRST DISTRICT COURT OF APPEALS


                                 Motion to Suppress


       {¶43} In his sixth assignment of error, Brand argues that the trial court erred

in failing to grant his motion to suppress the eyewitness identification.          He

specifically contends that the photographic lineup shown to McKinney was unduly

suggestive because the lineup photographs did not match the description of the

perpetrator.

       {¶44} Our review of a trial court’s ruling on a motion to suppress presents a

mixed question of law and fact. We must accept the trial court’s findings of fact if

they are supported by competent and credible evidence, but we review de novo the

trial court’s application of the law to the relevant facts. State v. Burnside, 100 Ohio

St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

       {¶45} A two-part test is utilized to determine whether an eyewitness

identification must be suppressed. See State v. Neal, 1st Dist. Hamilton No. C-

140667, 2015-Ohio-4705, ¶ 28, citing Perry v. New Hampshire, 565 U.S. 228, 238-

239, 132 S.Ct. 716, 181 L.Ed.2d 694 (2012).         First, the reviewing court must

determine whether the lineup procedure utilized was suggestive and unnecessary.

Id. Second, if the lineup is found to be suggestive and unnecessary, the court must

determine whether the identification was reliable under the totality of the

circumstances. Id. If the lineup is not found to be suggestive and unnecessary, a

court should not move on to the second step of the analysis. Id. at ¶ 29.

       {¶46} The lineup shown to McKinney was not unduly suggestive.               The

photographs used in the lineup did not contain height markers. So at the time that

the identification was made, McKinney was unaware that she was identifying a

suspect that was taller than the height description that she had provided. Further,




                                              15
                       OHIO FIRST DISTRICT COURT OF APPEALS



the lineup was created by Detective Vaughn using Ohio Law Enforcement Gateway, a

computer system that pulls photographs from various sources, including the Bureau

of Motor Vehicles.         The photographs were shown to McKinney individually in

sequential order by a blind administrator, who had been completely unaware of any

suspect or person contained within the lineup.

       {¶47} Because the lineup was not unduly suggestive, we need not determine

whether McKinney’s identification was reliable under the totality of the

circumstances. The trial court did not err in failing to grant Brand’s motion to

suppress.

       {¶48} The sixth assignment of error is overruled, and the judgment of the

trial court is affirmed.

                                                                      Judgment affirmed.



CUNNINGHAM and STAUTBERG, JJ., concur.



Please note:
       The court has recorded its own entry on the date of the release of this opinion.




                                                16
