[Cite as State v. Brown, 2011-Ohio-6782.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


                                              :   JUDGES:
STATE OF OHIO                                 :   William B. Hoffman, P.J.
                                              :   John W. Wise, J.
                         Plaintiff-Appellee   :   Julie A. Edwards, J.
                                              :
-vs-                                          :   Case No. 2011-CA-0021
                                              :
                                              :
CHRISTOPHER L. BROWN                          :   OPINION

                    Defendant-Appellant




CHARACTER OF PROCEEDING:                           Criminal Appeal from Richland
                                                   County Court of Common Pleas Case
                                                   No. 2010-CR-700D

JUDGMENT:                                          Affirmed

DATE OF JUDGMENT ENTRY:                            December 23, 2011

APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

JAMES J. MAYER, JR.                                PATRICIA O’DONNELL KITZLER
Prosecuting Attorney                               Anderson, Will, O’Donnell
Richland County, Ohio                              & Kitzler, LLC
                                                   3 North Main Street, Ste. 801
BY: DANIEL J. BENOIT                               Mansfield, Ohio 44902
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, Ohio 44902
[Cite as State v. Brown, 2011-Ohio-6782.]


Edwards, J.

        {¶1}    Appellant, Christopher Lamar Brown, appeals a judgment of the Richland

County Common Pleas Court convicting him of murder in violation of R.C. 2903.02(A)

with a firearm specification (R.C. 2941.145), murder in violation of R.C. 2903.02(B),

felonious assault (R.C. 2903.11(A)(2)) and carrying a concealed weapon (R.C.

2932.12(A)). Appellee is the State of Ohio.

                                   STATEMENT OF FACTS AND CASE

        {¶2}    On March 9, 2010, Shawntease Moore heard appellant and DeCarrio

Couley arguing in front of a home in her neighborhood. She was familiar with both

DeCarrio and appellant. She saw a tan Chevy Blazer with tinted windows speed away

from the argument with tires squealing.              As the vehicle drove past her house, a

streetlight illuminated the vehicle and she saw appellant in the driver’s seat. Appellant’s

driving was too fast and out of control, nearly striking a light post. She was concerned

that things were about to turn bad in the neighborhood and called her children in for the

night. She noticed that appellant was wearing a black hoodie and grey faded jeans and

had his hair pulled back in a ponytail that was bushy in the back. Later that evening,

Shawntease and her children made their way to another part of the neighborhood where

a friend was picking them up to take them to the Dollar General store.

        {¶3}    Shawntease’s         son,     Shaquan   Moore,   knew   DeCarrio   from   the

neighborhood. He also knew appellant by sight, although he only knew him as “Chris.”

He did not know appellant’s last name until after the shooting. Shaquan was playing

football outside with his brother when he saw appellant and DeCarrio arguing outside a

home owned by Rico Feagin.                  Appellant and DeCarrio were shoving each other.
Richland County App. Case No. 2011-CA-0021                                            3


Appellant told DeCarrio to get out of his face. DeCarrio responded, “Fuck you, you ain’t

going to do shit about it.” Appellant responded, “You get out of my face. I don’t fuck

with nobody down here in Mansfield.” Appellant told DeCarrio, “Every time you see me,

I either got my son or my strap. So you better watch your back.” Shaquan knew that in

his neighborhood, a “strap” is a gun. After this argument, Shawntease called Shaquan

and his brother into the house. Shaquan saw appellant speed off in his SUV, telling

DeCarrio, “I’ll be back.” Shaquan noted that appellant was wearing a black hoodie, dark

faded jeans and had his hair pulled back in a bushy ponytail.

      {¶4}   While walking with his mother and siblings to meet their ride to the Dollar

General, Shaquan’s younger brother dropped a spider monkey toy. When Shaquan

went back with his brother to retrieve it, he saw appellant and DeCarrio walking up the

street together. He saw them walk up Sixth Street toward an alley and noticed a police

cruiser going across Sixth Street. As Shaquan got into the van to ride to the store, he

heard a loud noise, which he believed was a firecracker.

      {¶5}   Between 7:30-8:00 p.m. on March 9, 2010, Shawntease’s sister,

Shadeena Brooks, went outside to smoke a cigarette on her porch because she does

not smoke in her home. There is a streetlight across from her home, on the corner.

She knew both appellant and DeCarrio from math class in high school. The pair spent a

lot of time together and were known at school as “Ebony and Ivory” because DeCarrio

had lighter skin and appellant had darker skin. She also knew both men from when she

worked at McDonald’s and Wendy’s, and they would come in and talk with her.

      {¶6}   After Shadeena saw Shawntease and her children on their way to the

store, she heard arguing. She heard someone say, “Nigger, I saved you, I saved you…
Richland County App. Case No. 2011-CA-0021                                              4


You know it ain’t that serious. Come on back down here. Quit playing, you know it ain’t

that serious.” She looked up to see two men walking. She heard one man say, “What

nigger? I’ll pop you.” At this point she stood up to see what was going on. She heard,

“Man, you ain’t gonna pop me.       We been friends since school.      It ain’t even that

serious.” The other person pulled out a gun and said, “Nigger I will pop you.” The gun

was fired. She could see DeCarrio’s face and knew he had been shot. DeCarrio fell to

the ground. She heard DeCarrio say, “Ah, shit nigger. You shot me. You shot me.

Chris, man, it ain’t even that serious. Just go on about your business. I ain’t gonna say

shit. Just go and leave me alone.” She saw DeCarrio get shot two more times. When

the shooter moved before shooting DeCarrio the third time, his face was illuminated by

a streetlight and she recognized appellant as the shooter. Shadeena noticed a police

car at the corner. Appellant stood in the alley like he was waiting for the officer to get

out of the car. As the officer sped across the street, she heard a fourth shot and then

saw appellant run down the alley.

      {¶7}   Officer David Johnson of the Mansfield Police Department was traveling

north on Sycamore Street at 8:14 p.m. He could see two African-American males in an

alley, one with a dark complexion and one with a lighter complexion. As he turned on to

Sixth Street, he heard someone say, “Shut the fuck up nigger, I’ll kill you.” As he

backed his cruiser up to the alley, he heard shots fired. He dove from his cruiser and

saw the man with the lighter complexion fall to the ground. He saw a man north of the

pair run away, and he looked up and saw a gun pointed at him. The man with the

darker complexion then ran down the alley. The officer believed this man was wearing

a hoodie, and his hair was bushy in the back. The man the officer viewed running away
Richland County App. Case No. 2011-CA-0021                                                5


to the north was later identified to be Cliff Mills, who did not meet the description of the

man with a gun.

       {¶8}   Officers arrived on the scene and located four bullet casings.         Officer

Steve Hornback arrived with his dog, Astor. Astor is trained to track a human scent, but

not the scent of a specific individual. The first tracks the police found in the snow did

not result in a successful track by Astor. However, police found a second set of tracks

which they believed to be fresh because the sides of the print were raised.           Astor

immediately picked up the track and pulled hard, indicating that the scent was fresh.

The dog led police to a blue home at 348 Spayer Lane, next to a white house behind

which two SUV’s were parked: a black and silver Chevy Blazer owned by appellant and

a tan Blazer owned by appellant’s mother. The tan SUV matched the description given

to police of the vehicle appellant was driving. Neighbors knew appellant lived in the

blue house and he had been seen at the white house next door. However, appellant

was not in the blue house when police followed Astor’s trail.

       {¶9}   Following the shooting, Shadeena was very upset and her family was

called to the house. She told both her sister Shawntease and her stepfather, “I seen

Chris shoot Carrio.” She told police the shooter was male, 25-27 years old, around 5’6”

or 5’7” tall, dark skinned, with hair sticking out of the back of his head and a goatee.

She identified appellant from a photo array the evening of the shooting.

       {¶10} DeCarrio was pronounced dead at the hospital.              Four bullets were

recovered from his body. According to the coroner, he had four gunshot tracks: three

in his torso, and one which passed through his genitals, scrotum, and right thigh.
Richland County App. Case No. 2011-CA-0021                                                  6


       {¶11} Appellant turned himself in at the police station on March 10, 2010. He

was indicted under case no. 10-CR-176D for two counts of murder, one count of

attempted murder, felonious assault, and carrying a concealed weapon, all with firearm

specifications. The first trial resulted in a mistrial after jurors visited the crime scene on

their own.

       {¶12} Appellant was reindicted in the instant case on October 8, 2010, with

aggravated murder with a firearm specification, two counts of murder with firearm

specifications, one count of attempted murder with a firearm specification, felonious

assault with a firearm specification, and carrying a concealed weapon. The earlier

indictment was dismissed.

       {¶13} Appellant filed a motion for appropriation of funds for an expert witness on

eyewitness identification. The court denied the motion. However, after trial the court

granted a motion for extraordinary fees, which included $1,000.00 to be paid to the

expert for consulting.

       {¶14} The case proceeded to jury trial in the Richland County Common Pleas

Court. Appellant was convicted of murder in violation of R.C. 2903.02(A) with a firearm

specification (R.C. 2941.145), murder in violation of R.C. 2903.02(B), felonious assault

(R.C. 2903.11(A)(2)) and carrying a concealed weapon (R.C. 2932.12(A)). The trial

court sentenced him to a term of incarceration of 15 years to life for murder, and

merged the second murder conviction and the felonious assault conviction into this

conviction. The court sentenced appellant to twelve months incarceration for carrying a

concealed weapon and three years incarceration on the firearm specification, for an
Richland County App. Case No. 2011-CA-0021                                                7


aggregate term of 19 years to life. The charges of aggravated murder and attempted

murder were dismissed. Appellant assigns three errors on appeal:

      {¶15} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING

APPELLANT’S MOTION FOR AN EXPERT AT STATE EXPENSE, THUS DEPRIVING

APPELLANT OF DUE PROCESS OF LAW AS GUARANTEED BY SECTION 16,

ARTICLE 1 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT

OF THE U.S. CONSTITUTION.

      {¶16} “II. APPELLANT’S CONVICTIONS ARE CONTRARY TO THE MANIFEST

WEIGHT AND SUFFICIENCY OF EVIDENCE PRESENTED AT TRIAL, THUS

DENYING APPELLANT A FAIR TRIAL AND DUE PROCESS OF LAW UNDER THE

FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AND

UNDER ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION.

      {¶17} “III. IT WAS PLAIN ERROR FOR THE COURT TO PERMIT THE

PROSECUTOR’S PARTICIPATION IN THE DECISION TO DENY THE MOTION FOR

AN EYEWITNESS IDENTIFICATION EXPERT AT STATE EXPENSE.”

                                                I

      {¶18} In his first assignment of error, appellant argues that the trial court erred in

overruling his motion for the appointment of an expert witness on eyewitness testimony.

      {¶19} R.C. 2929.024 provides in pertinent part:

      {¶20} “If the court determines that the defendant is indigent and that

investigation services, experts, or other services are reasonably necessary for the

proper representation of a defendant charged with aggravated murder at trial or at the

sentencing hearing, the court shall authorize the defendant's counsel to obtain the
Richland County App. Case No. 2011-CA-0021                                               8


necessary services for the defendant, and shall order that payment of the fees and

expenses for the necessary services be made in the same manner that payment for

appointed counsel is made pursuant to Chapter 120. of the Revised Code.”

       {¶21} As a matter of due process, indigent defendants are entitled to receive the

“raw materials” and the “basic tools of an adequate defense.” Ake v. Oklahoma (1985),

470 U.S. 68, 77, 105 S.Ct. 1087, 84 L.Ed.2d 53, quoting Britt v. North Carolina (1971),

404 U.S. 226, 227, 92 S.Ct. 431, 30 L.Ed.2d 400. In State v. Mason (1998), 82 Ohio

St.3d 144, 150, 694 N.E.2d 932, the Ohio Supreme Court held that “due process * * *

requires that an indigent criminal defendant be provided funds to obtain expert

assistance at state expense only where the trial court finds, in the exercise of a sound

discretion, that the defendant has made a particularized showing (1) of a reasonable

probability that the requested expert would aid in his defense, and (2) that denial of the

requested expert assistance would result in an unfair trial.”

       {¶22} In State v. Sargent, 169 Ohio App.3d 679, 864 N.E.2d 155, 2006 -Ohio-

6823, the Court of Appeals for the First District found that the trial court abused its

discretion in denying the appointment of an expert witness on eyewitness testimony

where the state’s case was based on the identification of one person, and that person

was under the stress of being held at gunpoint.        Id. at ¶13.   Similarly, in State v.

Bradley, 181 Ohio App.3d 40, 907 N.E.2d 1205, 2009-Ohio-460, the Eighth District

found the trial court abused its discretion in denying the appointment of an expert on

eyewitness identification where the state’s case was based primarily on the

identification of the victim, who was attacked and traumatized by the incident, had never
Richland County App. Case No. 2011-CA-0021                                               9


seen the perpetrator before, did not identify him until 30 days after the incident, and the

case involved cross-racial identification. Id. at ¶16.

       {¶23} In the instant case, Shadeena Brooks was the primary witness to the

shooting. She was not the victim and thus was not under the stress of having the gun

pointed at her. Although Shawntease Moore testified that it was drizzling outside, all

other witnesses testified that the night was clear. There was snow on the ground,

reflecting light from the streetlight. Brooks went to high school with both appellant and

the victim. She specifically saw appellant’s face when he stepped into the illumination

of the streetlight before he shot the victim a second time, and she heard DeCarrio call

the shooter “Chris” as he lay on the ground. Shortly after the shooting, she told both her

sister and her stepfather that she saw appellant shoot DeCarrio, and she identified

appellant from a photo array that night. The identification did not involve cross-racial

identification.   In addition, both Shawntease Moore and her son Shaquan identified

appellant as the man they saw arguing with DeCarrio earlier in the day, and they both

knew both appellant and DeCarrio from the neighborhood. The shooting was witnessed

in part by Officer David Johnson, who described the shooter as wearing a hoodie and

having bushy hair in the back, a description which matched that of appellant given by

Shawntease and Shaquan. In addition, a police dog tracked the shooter from the crime

scene to appellant’s front door.

       {¶24} Appellant has not demonstrated that the trial court abused its discretion in

finding that there was not a reasonable probability that an eyewitness would aid in the

defense and denial of the expert would result in an unfair trial.       The fact that the

shooting took place at night is a factor within the understanding and experience of the
Richland County App. Case No. 2011-CA-0021                                               10


jury, and the court further allowed the jury view to take place after dark. In addition, the

trial court allowed $1,000.00 to be paid to the expert for consultation, and counsel

extensively cross-examined witnesses on their identification of appellant.

       {¶25} Appellant also argues the court erred in taking judicial notice of the

testimony at the first trial in ruling on the motion. The judgment entry does not reflect

that the court took judicial notice of any testimony from the first trial. The court merely

cites to factual differences between the identification of the perpetrator in Bradley and

that in the instant case. These factual differences were set forth in the State’s response

to the motion for appropriation of funds for an expert.

       {¶26} Finally, appellant argues the State had no standing to respond to his

motion. Appellant cites no legal authority in support of his proposition that the State

lacked standing to file a response.

       {¶27} The first assignment of error is overruled.

                                             II

       {¶28} Appellant argues that the judgment is against the manifest weight and

sufficiency of the evidence.      He argues that the testimony of the witnesses is

inconsistent and therefore not credible.

       {¶29} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire

record, weighs the evidence and all reasonable inferences, considers the credibility of

witnesses, and determines whether in resolving conflicts in evidence the jury ‘clearly

lost its way and created such a manifest miscarriage of justice that the conviction must

be reversed and a new trial ordered.’” State v. Thompkins, 78 Ohio St.3d 380, 387, 678
Richland County App. Case No. 2011-CA-0021                                              11

N.E.2d 541, 1997-Ohio-52, quoting State v. Martin (1983), 20 Ohio App.3d 172, 175,

485 N.E.2d 717.

      {¶30} An appellate court's function when reviewing the sufficiency of the

evidence is to determine whether, after viewing the evidence in a light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St. 3d 259,

574 N.E.2d 492, paragraph two of the syllabus.

      {¶31} Appellant was convicted of murder in violation of R.C. 2903.02(A):

      {¶32} “(A) No person shall purposely cause the death of another or the unlawful

termination of another's pregnancy.”

      {¶33} While the witnesses’ testimony may have differed somewhat on the details

surrounding the events on the day of the murder, Shawntease Moore, Shaquan Moore,

and Shadeena Brooks all knew both appellant and the victim.             Shawntease and

Shaquan saw appellant and DeCarrio arguing earlier in the day. Shadeena witnessed

the shooting and testified that she saw appellant’s face illuminated by the streetlight.

She had known both appellant and DeCarrio for years. She further testified that she

heard the victim say after he had been shot, “Chris, man, it ain’t even that serious,” thus

confirming the shooter’s identity. Shadeena told two family members shortly after the

shooting that she saw appellant shoot DeCarrio and selected appellant from a photo

array the same evening as the shooting. The description of what appellant was wearing

and how his hair was tied back in a bushy ponytail matched the description given by

Officer Johnson, who witnessed the shooting. A police dog tracked the shooter from the

scene to appellant’s front door. The state presented sufficient evidence to support the
Richland County App. Case No. 2011-CA-0021                                                    12


conviction, and appellant has not demonstrated that the jury lost its way in believing the

testimony of the witnesses.

       {¶34} The second assignment of error is overruled.

                                                   III

       {¶35} In his third assignment of error, appellant argues that the court committed

plain error in not considering his motion for the appointment of an expert ex parte.

       {¶36} In order to prevail under a plain error analysis, appellant bears the burden

of demonstrating that the outcome of the trial clearly would have been different but for

the error. State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804; Notice of plain error

“is to be taken with the utmost caution, under exceptional circumstances and only to

prevent a manifest miscarriage of justice.” Id. at paragraph three of the syllabus.

       {¶37} Appellant cites Ake v. Oklahoma (1985), 470 U.S. 68, 82-83, in which the

United States Supreme Court stated:

       {¶38} “When the defendant is able to make an ex parte threshold showing to the

trial court that his sanity is likely to be a significant factor in his defense, the need for the

assistance of a psychiatrist is readily apparent.”

       {¶39} However, Ake does not require that the motion be considered ex parte.

An ex parte hearing may be required when such protection is necessary to protect

defense counsel’s strategy, but it is not required in every case. State v. Peeples (1994),

94 Ohio App.3d 34, 640 N.E.2d 208. In the instant case, there is no indication that an

ex parte hearing was required to protect counsel’s strategy.            Counsel’s strategy of

attacking the eyewitness identification was not a novel or unique strategy in a case that

rested in large part on the testimony of the witnesses to the shooting. Appellant has not
Richland County App. Case No. 2011-CA-0021                                         13


demonstrated that had he been given an ex parte hearing, his request for appropriation

of fees would have been granted, the expert would have testified and appellant would

have been acquitted.

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

      {¶41} The judgment of the Richland County Common Pleas Court is affirmed.




By: Edwards, J.

Hoffman, P.J. and

Wise, J. concur

                                                 ______________________________



                                                 ______________________________



                                                 ______________________________

                                                             JUDGES
[Cite as State v. Brown, 2011-Ohio-6782.]


              IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                    :
                                                 :
                            Plaintiff-Appellee   :
                                                 :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
CHRISTOPHER L. BROWN                             :
                                                 :
                        Defendant-Appellant      :       CASE NO. 2011-CA-0021




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Richland County Court of Common Pleas is affirmed. Costs assessed

to appellant.




                                                     _________________________________


                                                     _________________________________


                                                     _________________________________

                                                                  JUDGES
