[Cite as State v. Brown, 2013-Ohio-1610.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                            BUTLER COUNTY




STATE OF OHIO,                                    :

        Plaintiff-Appellee,                       :     CASE NO. CA2011-11-207

                                                  :            OPINION
   - vs -                                                       4/22/2013
                                                  :

STANLEY BROWN,                                    :

        Defendant-Appellant.                      :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2010-12-1966



Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Stanley Brown, #014-974, Lebanon Correctional Institution, P.O. Box 56, Lebanon, Ohio
45036, defendant-appellant, pro se



        HENDRICKSON, P.J.

        {¶ 1} Defendant-appellant, Stanley Brown, appeals his convictions in the Butler

County Court of Common Pleas for two counts of rape. For the reasons discussed below, we

affirm Brown's convictions.

        {¶ 2} On December 15, 2010, Brown was indicted on three counts of rape in violation

of R.C. 2907.02(A)(1)(b). The charges arose out of allegations that Brown engaged in fellatio
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and vaginal intercourse with his step-daughter, K.G. (born February 7, 1995), on or about the

fall of 2003 through the spring of 2004 (count one), on or about the spring of 2004 through

the fall of 2005 (count two), and on or about the spring of 2005 through the spring of 2006

(count three) when she was less than 13 years old in Butler County. Count one of the

indictment also specified that at the time of the rape, K.G. was less than 10 years of age.

         {¶ 3} A jury trial was held in September 2011. At trial, the state presented the

testimony of K.G. and K.G.'s school guidance counselor, Angela Bucheit. K.G. testified that

in 2003, she was a third grader living with her mother, Brown, and her twin sister in an

apartment on Gordon Smith Boulevard in Hamilton, Ohio. K.G. stated that Brown began to

ask her to do him "favors," which consisted of him trying to have sex with her. K.G. testified

that Brown took her to an abandoned apartment on Gordon Smith Boulevard and forced her

to touch his penis and put her mouth on his penis. She also testified that Brown digitally

penetrated her vagina and put his penis into her "a little bit" until she started kicking and

screaming. After the incident ended, Brown instructed K.G. not to tell her parents or he

would hurt them.

         {¶ 4} K.G. testified that a second encounter with Brown occurred when she was a

fifth grader at Richard Allen Academy.       K.G. stated that although she lived with her

grandparents, she was visiting her mother at her mother's apartment on Chestnut Street in

Hamilton, Ohio while on spring break. K.G. testified that after showering at her mother's

apartment, Brown asked her to come to his room and do him a "favor." When K.G. told him

"no," he pushed her down on his bed and started to choke her until she put her mouth on his

penis.

         {¶ 5} K.G. testified that her mother later moved back to an apartment on Gordon

Smith Boulevard in Hamilton, Ohio. During one of K.G.'s visits to her mother's apartment,



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Brown came into the victim's room and asked her to do him a "favor" again. K.G. stated she

put her mouth on Brown's penis.

       {¶ 6} K.G. did not report these rapes until March 2010, when she was a sophomore

in high school. K.G. explained that during her sophomore year, her health class had a guest

speaker from Children's Hospital who discussed child abuse and alcohol abuse. During the

course of the guest speaker's presentation, K.G. volunteered to read a card prepared by the

speaker that discussed a girl who had become dependent upon drugs and alcohol after

remaining silent about being raped. K.G. testified that after reading the card, she "got

nervous on the inside" and "was starting to cry." After class, K.G. spoke with the guest

speaker and with Bucheit about what had happened with Brown. K.G. testified that Bucheit

called the police and she gave a statement to detectives later that day.

       {¶ 7} On cross-examination, K.G. admitted that prior to 2010 she had not told her

mother, grandparents, sister, or the police about what had happened with Brown, and she

had not sought medical attention after the rapes occurred. K.G. acknowledged that she had

previously had a good relationship with Brown, that she called him "dad," that they said "I

love you" to one another, and that when Brown was in jail from June 2004 to May 2006, she

wrote him letters. K.G. denied the defense's allegation that she "made [the] whole thing up,"

but acknowledged that her trial testimony differed from the statement she gave to detectives

in March 2010 and from her December 2010 grand jury testimony. K.G. admitted that she

never told detectives that she performed oral sex on Brown or that they had engaged in

sexual intercourse. Additionally, she admitted that during her grand jury testimony she had

identified different locations where the rapes occurred, including a Travel Lodge in Kentucky,

and had described the rapes as involving both vaginal intercourse and oral sex. K.G.

explained that she was not lying when she gave her statement to the detectives, when she

testified before the grand jury, or when testifying before the jury. Rather, when talking to the

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detectives, she gave the events in the order she remembered them and additional details

surfaced the more she thought about what had happened to her.

       {¶ 8} Bucheit was then called to the stand to testify, over the defense's objections,

about the statements K.G. made to her after the guest speaker's presentation at the school.

Bucheit testified she spoke with K.G. on March 19, 2010, after K.G. was released from her

health class. At this time, K.G. told Bucheit that Brown had inappropriately touched her

breasts and vagina, and he had raped her by "put[ting] his thing inside of her." When Bucheit

asked K.G. what she meant by that statement, K.G. specified that Brown "put his penis in my

vagina." K.G. told Bucheit that it had happened more than once, and one of the times it

occurred at an apartment on Gordon Smith Boulevard in Hamilton, Ohio.

       {¶ 9} Following Bucheit's testimony, the defense made a Crim.R. 29 motion for

acquittal, which was denied by the trial court. Brown took the stand in his own defense and

stated that K.G.'s testimony was all lies. He testified that he never digitally penetrated, had

oral sex with, or had sexual intercourse with K.G. Brown claimed that since beginning his

relationship with K.G.'s mother in 2003, he has never been alone with K.G. – "not even for

ten minutes." Brown testified that he had a good relationship with K.G., and when he was in

prison from June 2004 to May 2006, he would frequently talk to K.G. and receive "happy"

letters from her. At trial, Brown presented a letter, dated January 1, 2009, that had been

written by K.G.'s mother. At the end of the letter K.G. had written a short message to Brown,

which stated:

                P.S. Hey daddy! I ghott [sic] a boyfriend and his name is
                Jamonta (JT)!! He so [sic] sweet. Ha. Don't loose [sic] your
                head daddy. I love you.

       {¶ 10} A friend and former neighbor of Brown's, Wilma Buck, testified at trial that she

did not believe K.G. had ever stayed overnight with Brown without K.G.'s mother also being

present. Brown's niece, Bridgett Brown, testified that K.G. had spent "quite a few" weekends

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at her house over the years so that K.G. could visit with Bridgett's children. Bridgett stated

that she had the opportunity to see K.G. and Brown interact and that K.G. was "ecstatic"

about having a dad in her life. She described K.G. and Brown's relationship as that of a

father and daughter.

       {¶ 11} Following closing arguments, the defense requested jury instructions for the

lesser-included offenses of attempted rape and gross sexual imposition. The trial court

denied the requests and provided a jury instruction for the offense of rape by fellatio for each

count of the indictment. The jury returned a guilty verdict on counts one and two of the

indictment, but acquitted Brown of the rape specified in count three of the indictment. With

respect to its determination on count one of the indictment, the jury found that at the time of

the rape, K.G. was less than ten years of age. Brown was sentenced to life with the

possibility of parole in ten years. Brown now appeals, raising five assignments of error.

       {¶ 12} Assignment of Error No. 1:

       {¶ 13} K.G.'S TESTIMONY WAS IMPROPERLY BOLSTERED BY HEARSAY

STATEMENTS.

       {¶ 14} In his first assignment of error, Brown argues the trial court erred in permitting

Bucheit to testify about the statements K.G. made to her on May 19, 2010. Brown contends

that the statements K.G. made to Bucheit were inconsistent with her trial testimony as K.G.

never mentioned to Bucheit that she performed oral sex on Brown. Brown also argues that

Bucheit's testimony was not used to rebut a charge of improper motive or recent fabrication,

as required by Evid.R. 801(D)(1)(b), but rather were used to prove the truth of K.G.'s

testimony.

       {¶ 15} The admissibility of relevant evidence is left to the sound discretion of the trial

court. State v. Atkinson, 12th Dist. No. CA2009-10-129, 2010-Ohio-2825, ¶ 7. "Absent an

abuse of discretion, as well as a showing that appellant suffered material prejudice, an

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appellate court will not disturb a trial court's ruling as to the admissibility of evidence." Id.

An abuse of discretion implies that the court's decision was unreasonable, arbitrary, or

unconscionable, and not merely an error of law or judgment. State v. Ford, 12th Dist. No.

CA2009-01-039, 2009-Ohio-6046, ¶ 36.

       {¶ 16} Evid.R. 801(D) defines certain out-of-court declarations as non-hearsay. Under

Evid.R. 801(D)(1)(b) an out-of-court statement is not hearsay if "[t]he declarant testifies at

trial * * * and is subject to cross-examination concerning the statement, and the statement is *

* * consistent with declarant's testimony and is offered to rebut an express or implied charge

against declarant of recent fabrication or improper influence or motive." This rule "permits

the rehabilitation of a witness whose credibility has been attacked by an express or implied

charge that he recently fabricated his story or falsified his testimony in response to improper

motivation or undue influence." State v. Smith, 12th Dist. No. CA2009-02-038, 2010-Ohio-

1721, ¶ 102; State v. Grays, 12th Dist. No. CA2001-02-007, 2001 WL 1302551, *5 (Oct. 29,

2001). In order to be admissible, the prior consistent statements must have been made

before the existence of any motive or influence to falsify testimony. State v. Williams, 12th

Dist. No. CA2007-04-087, 2008-Ohio-3729, ¶ 12. "In determining whether to admit a prior

consistent statement for rebuttal purposes, a trial court should take a generous view of the

entire trial setting to determine if there was sufficient impeachment of the witness to amount

to a charge of fabrication or improper influence or motivation." Smith at ¶ 103.

       {¶ 17} After reviewing the record, we find that the trial court properly admitted K.G.'s

statements to Bucheit pursuant to Evid.R. 801(D)(1)(b). K.G.'s statements to Bucheit that

Brown had raped her by "put[ting] his thing inside of her" and "put[ting] his penis in [her]

vagina" were consistent with K.G.'s trial testimony that Brown digitally penetrated her vagina

and put his penis into her "a little bit." See R.C. 2907.01(A) ("'Sexual conduct' means vaginal

intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between

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persons regardless of sex; and, without privilege to do so, the insertion, however slight, of

any part of the body or any instrument, apparatus, or other object into the vaginal or anal

opening of another. Penetration, however light, is sufficient to complete vaginal or anal

intercourse.").

       {¶ 18} Furthermore, during defense counsel's cross-examination of K.G., the defense

expressly challenged whether K.G.'s trial testimony was fabricated. The defense specifically

asked K.G., "[I]sn't it the truth that you made this whole thing up? * * * [Y]ou're telling these

ladies and gentlemen [of the jury] * * * something [that] is not true?" Given the defense's

challenge of K.G.'s trial testimony regarding the events that transpired between her and

Brown, the trial court was within its discretion to allow rehabilitation through the introduction

of a prior consistent statement pursuant to Evid.R. 801(D)(1)(b).

       {¶ 19} Brown's first assignment of error is, therefore, overruled.

       {¶ 20} Assignment of Error No. 2:

       {¶ 21} THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT REFUSED TO

GIVE A LESSER-INCLUDED OFFENSE INSTRUCTION.

       {¶ 22} In his second assignment of error, Brown argues the trial court erred in refusing

to give jury instructions for the lesser-included offenses of attempted rape and gross sexual

imposition. Brown contends that given K.G.'s "wide-ranging version" of events, the jury could

have found him not guilty of rape but guilty of either attempted rape or gross sexual

imposition had the proper jury instructions been provided.

       {¶ 23} Jury instructions are matters left to the sound discretion of the trial court. State

v. Tucker, 12th Dist. No. CA2010-10-263, 2012-Ohio-139, ¶ 23. Therefore, this court reviews

the trial court's decision refusing to provide the jury with a requested jury instruction for an

abuse of discretion. State v. Cruz, 12th Dist. No. CA2012-03-059, 2013-Ohio-215, ¶ 18. As

noted above, an abuse of discretion implies that the court's decision was unreasonable,
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arbitrary, or unconscionable, and not merely an error of law or judgment. Ford, 2009-Ohio-

6046 at ¶ 36.

       {¶ 24} "A jury instruction on a lesser-included offense is required only where the

evidence presented at trial would reasonably support both an acquittal on the crime charged

and a conviction on the lesser-included offense." Cruz at ¶ 19. However, a jury instruction is

not warranted simply because the defendant offers "some evidence" to support the inferior

offense. State v. Anderson, 12th Dist. No. CA2005-06-156, 2006-Ohio-2714, ¶ 11. "There

must be 'sufficient evidence' to 'allow a jury to reasonably reject the greater offense and find

the defendant guilty on a lesser-included * * * offense.'" (Emphasis sic.) Id., quoting State v.

Shane, 63 Ohio St.3d 630, 632-633 (1992).

       {¶ 25} Brown was found guilty of rape in violation of R.C. 2907.02(A)(1)(b), which

provides that "[n]o person shall engage in sexual conduct with another who is not the spouse

of the offender * * * when * * * [t]he other person is less than thirteen years of age, whether or

not the offender knows the age of the other person." Attempted rape and gross sexual

imposition are lesser-included offenses of rape. See State v. Williams, 74 Ohio St.3d 569,

578 (1996); Cruz at ¶ 16. R.C. 2923.02(A) defines the crime of attempt and provides that

"[n]o person, purposely or knowingly, * * * shall engage in conduct that, if successful, would

constitute or result in the offense." R.C. 2907.05(A)(4) defines the crime of gross sexual

imposition and provides that "[n]o person shall have sexual contact with another, not the

spouse of the offender * * * when * * * [t]he other person * * * is less than thirteen years of

age, whether or not the offender knows the age of that person."

       {¶ 26} The pertinent difference between rape, or attempted rape, and gross sexual

imposition are the acts that constitute "sexual conduct" versus the acts that constitute "sexual

contact." R.C. 2907.01(A) defines sexual conduct as:



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              vaginal intercourse between a male and female; anal
              intercourse, fellatio, and cunnilingus between persons regardless
              of sex; and, without privilege to do so, the insertion, however
              slight, of any part of the body or any instrument, apparatus, or
              other object into the vaginal or anal opening of another.
              Penetration, however slight, is sufficient to complete vaginal or
              anal intercourse.

Sexual contact, on the other hand, is defined as "any touching of an erogenous zone of

another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person

is a female, a breast, for the purpose of sexually arousing or gratifying either person." R.C.

2907.01(B).

       {¶ 27} We find that the trial court did not abuse its discretion in refusing to instruct the

jury on the lesser-included offenses of gross sexual imposition and attempted rape. In

reaching this determination, we are guided by the Supreme Court's decision in State v.

Johnson, 36 Ohio St.3d 224 (1988). In Johnson, the defendant was charged with multiple

counts of rape of his minor daughters. Id. at 226. Although it was clear that sexual contact

had also occurred between the defendant and the minor victims, the state chose to narrowly

focus its case on the rape charges. Id. at 226-227. The defendant denied being involved in

the rapes, claiming that the victims' stories were wholly fabricated. Id. at 227. Because no

physical evidence of the rapes existed, the state's entire case depended on the credibility of

the victims' testimony as to penetration. Id. In considering whether the defendant was

entitled to a jury instruction for the lesser-included offense of gross sexual imposition, the

Supreme Court stated the following:

              A criminal defendant is not entitled to a jury instruction on gross
              sexual imposition as a lesser included offense of rape where the
              defendant has denied participation in the alleged offense, and
              the jury, considering such defense, could not reasonably
              disbelieve the victim's testimony as to "sexual conduct," R.C.
              2907.01(A), and, at the same time, consistently and reasonably
              believe her testimony on the contrary theory of mere "sexual
              contact," R.C. 2907.01(B).


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Id. at paragraph two of the syllabus. Accordingly, the Supreme Court determined the trial

court did not abuse its discretion in refusing to instruct the jury on the lesser-included offense

of gross sexual imposition. Id. at 228.

        {¶ 28} As in Johnson, the state in the case sub judice chose to narrowly focus its

prosecution on the rape charges, and the entire case depended upon the credibility of the

victim's testimony as to the act of fellatio.1 At trial, K.G. consistently testified that Brown

made her perform fellatio. K.G. stated Brown "made me touch his penis and he made me

put my mouth on it and then he made me basically move my mouth on it." Although K.G.

testified about other instances when Brown put his penis inside her vagina or required her to

touch his penis, this testimony did not support an instruction for gross sexual imposition.

Such testimony was given in addition to K.G.'s testimony regarding multiple instances of

fellatio, and the other acts were not relevant to whether Brown engaged in sexual conduct

constituting rape by fellatio. See Johnson at 227-228; Cruz, 2013-Ohio-215 at ¶ 23. K.G.'s

testimony about putting her mouth on Brown's penis clearly fit within the definition of sexual

conduct as required by the rape statute, rather than mere sexual contact as required for

gross sexual imposition.

        {¶ 29} Furthermore, Brown's defense was that the acts K.G. testified to never actually

occurred. Brown argued that he did not participate in any act with K.G. that constituted rape.

At no time did he challenge K.G.'s inability to differentiate between mere touching or sexual

contact and the act of fellatio. Accordingly, pursuant to Johnson, Brown was not entitled to a

jury instruction on the lesser-included offense of gross sexual imposition. He was also not

entitled an instruction on the lesser-included offense of attempted rape as K.G.'s testimony


1. At trial, the state moved to amend the Bill of Particulars so that it was "consistent with [K.G.'s] testimony,
which would include the fellatio on all three counts of the indictment." The trial court granted the state's request,
noting that "the defendant is only being charged and can only be convicted as charged on the act of fellatio, not
vaginal intercourse, or attempted vaginal intercourse. * * * Counts One, Two, and Three will be limited to the act
of fellatio."
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indicated that for each charge of rape, Brown had successfully completed the act of rape by

placing his penis in K.G.'s mouth.

       {¶ 30} Accordingly, Brown's second assignment of error is overruled.

       {¶ 31} Assignment of Error No. 3:

       {¶ 32} MR. BROWN'S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE.

       {¶ 33} In his third assignment of error, Brown argues that the jury "lost its way" when it

convicted him of two counts of rape. Brown contends that K.G.'s testimony was not reliable

as "her story kept changing" and there was no credible evidence on which the jury could have

based their verdict.

       {¶ 34} A manifest weight of the evidence challenge examines the "inclination of the

greater amount of credible evidence, offered at a trial, to support one side of the issue rather

than the other." State v. Barnett, 12th Dist. No. CA2011-09-177, 2012-Ohio-2372, ¶ 14. To

determine whether a conviction is against the manifest weight of the evidence, the reviewing

court must look at the entire record, weigh the evidence and all reasonable inferences,

consider the credibility of the witnesses, and determine whether in resolving the conflicts in

the evidence, the trier of fact 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. Graham, 12th

Dist. No. CA2008-07-095, 2009-Ohio-2814, ¶ 66. In reviewing the evidence, an appellate

court must be mindful that the jury, as the original trier of fact, was in the best position to

judge the credibility of witnesses and determine the weight to be given to the evidence. State

v. Blankenburg, 197 Ohio App.3d 201, 2012-Ohio-1289, ¶ 114 (12th Dist.).                   "The

discretionary power to grant a new trial should be exercised only in the exceptional case in

which the evidence weighs heavily against the conviction." Id., citing State v. Thompkins, 78

Ohio St.3d 380, 387 (1997). Furthermore, "[a] unanimous concurrence of all three judges on
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the court of appeals panel reviewing the case is required to reverse a judgment on the weight

of the evidence in a jury trial." Id., citing Thompkins at 389.

       {¶ 35} Brown was found guilty of two counts of rape in violation of R.C.

2907.02(A)(1)(b), which provides that "[n]o person shall engage in sexual conduct with

another who is not the spouse of the offender * * * when * * * [t]he other person is less than

thirteen years of age, whether or not the offender knows the age of the other person." The

sexual conduct Brown was convicted of was fellatio, which is defined as "a sexual act in

which the mouth or lips come into contact with the penis." R.C. 2907.01(A); State v.

Speakman, 12th Dist. No. CA2010-06-013, 2011-Ohio-3430, ¶ 12.

       {¶ 36} After reviewing the entire record, weighing inferences and examining the

credibility of the witnesses, we cannot say that Brown's convictions for rape were against the

manifest weight of the evidence. K.G.'s testimony demonstrated that at the time of the rapes,

she was not married to Brown and she was less than 13 years of age. Furthermore, K.G.'s

testimony that she was born in February 1995, and that the first rape occurred in 2003 is

evidence that the rape specified in count one of the indictment occurred when she was only 8

or 9 years old. Her statements that Brown "made me put my mouth on [his penis] and then

he made me basically move my mouth on it" while at an abandoned apartment on Gordon

Smith Boulevard and while at her mother's residence on Chestnut Street is evidence that the

sexual conduct of fellatio occurred.

       {¶ 37} Although Brown denied having any sexual involvement with K.G., claiming that

he was never alone with K.G. and that her testimony was all lies, it is clear that the jury found

K.G.'s testimony credible. While Brown was able to point out inconsistencies in K.G.'s trial

testimony from her testimony before the grand jury and from her statement to detectives,

K.G. explained that she was had not been lying when giving any of her statements, but that

additional details had surfaced the more she thought about what had happened to her as a

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child. The jury in this case was in a better position to view the witnesses, observe their

demeanor, and assess their credibility, and was free to believe or disbelieve all, part, or none

of their testimony. State v. Woodward, 12th Dist. No. CA2011-02-036, 2011-Ohio-6019, ¶

35. Here, the jury obviously found K.G.'s testimony to be more credible and chose to believe

her version of the events over Brown's proffered version. "It is well-established that '[w]hen

conflicting evidence is presented at trial, a conviction is not against the manifest weight of the

evidence simply because the jury believed the prosecution testimony.'" State v. Bates, 12th

Dist. No. CA2009-06-174, 2010-Ohio-1723, ¶ 11, quoting State v. Bromagen, 12th Dist. No.

CA2005-09-087, 2006-Ohio-4429, ¶ 38.

       {¶ 38} Accordingly, we find that Brown's convictions for rape were not against the

manifest weight of the evidence, and his third assignment of error is overruled.

       {¶ 39} Assignment of Error No. 4:

       {¶ 40} MR. BROWN'S TRIAL WAS FUNDAMENTALLY UNFAIR BECAUSE THE

COURT TAINTED THE JURY VENIRE BY TELLING IT THAT INNOCENT PEOPLE ARE

NOT BROUGHT TO TRIAL.

       {¶ 41} In his fourth assignment of error, Brown argues that the trial court "poisoned the

jury venire by instructing it that innocent people are not brought to trial," and he contends that

the court's error was so egregious that it rose to the level of structural error. Specifically,

Brown challenges the trial court's comment to the jury during the voir dire process, whereby

the court explained the grand jury process and stated, "[a]nd that is a procedural safeguard

to make certain that innocent people aren't drug into the courtrooms and required to hire an

attorney and possibly go through all the rigors involving that." The state contends, however,

that Brown has taken the judge's comment out of context and that the judge's instructions,

when reviewed in their entirety, demonstrate that the jury was consistently instructed that

Brown was presumed innocent and that the state had the burden of proving otherwise at trial.

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       {¶ 42} "A structural error is a 'defect affecting the framework within which the trial

proceeds, rather than simply an error in the trial process itself.'" State v. Drummond, 111

Ohio St.3d 14, 2006-Ohio-5084, ¶ 50, quoting Arizona v. Fulminante, 449 U.S. 279, 310, 111

S.Ct. 1246 (1991). "Such errors permeate '[t]he entire conduct of the trial from beginning to

end' so that the trial cannot 'reliably serve its function as a vehicle for determination of guilt or

innocence.'" State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, ¶ 17, quoting Fulminante at

309-310. Structural errors can be found only in a "very limited class of cases." Perry at ¶ 18.

       {¶ 43} In determining whether the trial court erred in instructing the jury during the voir

dire process, we look at the instructions it gave as a whole. State v. Gilbert, 12th Dist. No.

CA2010-09-240, 2011-Ohio-4340, ¶ 63; State v. Clay, 7th Dist. No. 08 MA 2, 2009-Ohio-

1204, ¶ 159. "[T]he judge's shorthand references to legal concepts during voir dire cannot be

equated to final instructions given before the jury's [final] deliberations." Clay at ¶ 160, citing

State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, ¶ 204. Furthermore, "[a] single

instruction to a jury may not be judged in artificial isolation but must be viewed in the context

of the overall charge." Clay at ¶ 159, citing State v. Price, 60 Ohio St.2d 136 (1979),

paragraph four of the syllabus.

       {¶ 44} In the present case, we do not find structural error as the trial court did not

prejudice Brown or otherwise err in instructing the jury during the voir dire process. The

record reflects that the jury pool was informed numerous times that Brown was presumed

innocent and the state had the burden of proving otherwise by proof beyond a reasonable

doubt. For example, the trial court stated:

               THE COURT: * * * I want to go through something that really
               runs to the heart of the criminal trial. You may recall from your
               civics lessons a couple years ago when you were in school that
               in a criminal case it is the State of Ohio who bears the burden of
               proof. And you've all heard that the defendant is presumed
               innocent. And those words just roll off the tongue, and I don't
               know that a lot of people, unless - - unless they are sitting where
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            you are sitting, ever really thought about what that means. And
            what that means in plain and simple language is that the State of
            Ohio must prove each and every element of the offense by proof
            beyond a reasonable doubt.

            ***

            Now, the State has to present the proof. The defendant is
            presumed innocent. If the State doesn't present that proof, if the
            defendant is presumed innocent, then the defendant must be?

            JURORS: Acquitted.

            THE COURT: Acquitted. Thank you very much. So, is it
            necessary, the question that may be running through your mind,
            is it necessary that the defendant present any evidence? And of
            course not. The defendant is not required to present any
            evidence because he is presumed innocent, and the State has
            the burden of proof.

            ***

            THE COURT: All right. Let's go through another little exercise
            here. This defendant is seated here in this courtroom because
            the grand jury was called, and of course, that is another
            protection that our founding fathers built into the system to make
            certain that only those who the evidence would show are
            probably guilty are required to stand trial. And so, the grand
            jurors met and they listened to evidence. They listed to
            evidence that was presented by the prosecutor without the
            defendant present.

            The defendant wasn't there. The defendant's attorney wasn't
            there. The defendant's attorney was not allowed to ask those
            witnesses any questions. The defendant was not permitted to,
            obviously, make a statement since he wasn't there, or present
            any evidence because he wasn't there. And that is a procedural
            safeguard to make certain that innocent people aren't drug into
            the courtrooms and required to hire an attorney and possibly go
            through all the rigors involving that. But the fact that the
            defendant is seated here in this courtroom and charged with one
            or more offenses cannot be considered by you as potential
            jurors as any indication of the defendant's guilt.

            It kind of goes back to my point earlier, the defendant is
            presumed innocent.

(Emphasis added).


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       {¶ 45} As the record indicates, there was only one instance in which the trial court's

statements could be viewed as possibly commenting on the defendant's guilt or innocence.

Rather, the instruction as a whole informed the jury pool that Brown was presumed innocent.

We do not find this one comment was an error, let alone an error that "permeate[d] the entire

conduct of the trial from beginning to end." See Perry at ¶ 17.

       {¶ 46} Even if the trial court had erred in stating that the grand jury process ensures

that "innocent people aren't drug into the courtrooms and required to hire an attorney and

possibly go through all the rigors involving that," the error was mitigated by the court's

numerous comments regarding the presumption of innocence, the state's burden of proof,

and the obligation to find the defendant not guilty upon insufficient proof. See Clay at ¶ 160;

State v. Zobel, 5th Dist. No. 96AP060051, 1997 WL 220295, *6-7 (Mar. 27, 1997) (finding

that any error during the voir dire portion of the proceedings was harmless as the "jury

instructions as a whole conveyed to the jury the presumption of innocence and the necessity

of finding guilty beyond a reasonable doubt").

       {¶ 47} Brown's fourth assignment of error is, therefore, overruled.

       {¶ 48} Assignment of Error No. 5:

       {¶ 49} TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE

COURT'S IMPROPER INTRODUCTORY EXPLANATION THAT TAINTED THE JURY

POOL.

       {¶ 50} In his fifth assignment of error, Brown argues that his trial counsel was

ineffective for failing to object to the trial court's comment during voir dire that procedural

safeguards exist to "make certain that innocent people aren't drug into the courtrooms and

required to hire an attorney and possibly go through all the rigors involving that." We

disagree.



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       {¶ 51} To prevail on his ineffective assistance of counsel claim, Brown must

demonstrate that (1) his trial counsel's performance in failing to object to the court's comment

during the voir dire process fell below an objective standard of reasonableness and (2) that

he was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687-688, 693, 104

S.Ct. 2052 (1984). Prejudice exists where there is a reasonable probability that, but for

counsel's errors, the result of the trial would have been different. Id. at 694. "A defendant's

failure to satisfy one prong of the Strickland test negates a court's need to consider the

other." State v. Madrigal, 87 Ohio St.3d 378, 389 (2000).

       {¶ 52} As discussed above, there is no indication that Brown was prejudiced by the

trial court's comment during the voir dire process. Rather, the record indicates that the trial

court properly instructed the jury, numerous times, regarding the presumption of Brown's

innocence, the state's burden of proof, and the jury's obligation to find Brown not guilty upon

insufficient proof. The jury clearly understood the trial court's instructions and followed such

instructions as it acquitted Brown on count three of the indictment, demonstrating that it was

not "poisoned" by the trial court's comment during the voir dire process.

       {¶ 53} Accordingly, we find that Brown was not denied effective assistance of trial

counsel. Brown's fifth assignment of error is, therefore, overruled.

       {¶ 54} Judgment affirmed.


       S. POWELL and M. POWELL, JJ., concur.




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