[Cite as State v. Brown, 2017-Ohio-4231.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                            PREBLE COUNTY




STATE OF OHIO,                                    :

        Plaintiff-Appellee,                       :     CASE NO. CA2016-07-006

                                                  :            OPINION
    - vs -                                                      6/12/2017
                                                  :

LARRY E. BROWN II,                                :

        Defendant-Appellant.                      :



       CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS
                           Case No. 15CR011706



Martin P. Votel, Preble County Prosecuting Attorney, Kathryn West, Preble County
Courthouse, 101 East Main Street, Eaton, Ohio 45320, for plaintiff-appellee

Repper, Pagan, Cook, Ltd., Christopher J. Pagan, 1501 First Avenue, Middletown, Ohio
45044, for defendant-appellant



        PIPER, J.

        {¶ 1} Defendant-appellant, Larry Brown, appeals his convictions in the Preble County

Court of Common Pleas for rape, sexual battery, gross sexual imposition, and importuning.

        {¶ 2} The charges stem from allegations made by B.H., who alleged that Brown had

kissed her, forced her to masturbate him, and forced her to perform fellatio on him when she

was 11 and 12 years old. According to B.H., Brown's sexual abuse occurred at a farm owned
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by a family friend when she and Brown would be there working for the farm's owner. B.H.

recorded some of her thoughts about the sexual abuse in a journal, which was later found

and read by her mother. B.H. also told her mother and grandmother about the sexual abuse

after it occurred.

       {¶ 3} Brown was indicted, and pled not guilty. After waiving the right to a jury trial,

Brown was tried by the court during a bench trial. The trial court found Brown guilty on all

charges. After merging the other counts into the rape charge, the court sentenced Brown to

a term of ten years to life in prison. Brown now appeals his convictions and sentence, raising

the following assignments of error.

       {¶ 4} Assignment of Error No. 1:

       {¶ 5} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT WHEN IT

DID NOT GRANT HIS MOTION FOR A NEW TRIAL.

       {¶ 6} Brown argues in his first assignment of error that the trial court should have

granted him a new trial based on a Brady violation by the state.

       {¶ 7} According to Crim.R. 33(A), a new trial may be granted "for any of the causes

affecting materially" the defendant's substantial rights. Two of those causes include "(1)

irregularity in the proceedings, or in any order or ruling of the court, or abuse of discretion by

the court, because of which the defendant was prevented from having a fair trial," and "(3)

accident or surprise which ordinary prudence could not have guarded against." The decision

to grant or deny a motion for a new trial is within the sound discretion of the trial court, and

will not be reversed absent an abuse of that discretion. State v. Ruhlman, 12th Dist. Butler

No. CA2005-05-125, 2006-Ohio-2137. An abuse of discretion "connotes more than an error

of law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or

unconscionable." State v. Adams, 62 Ohio St.2d 151, 158 (1980).

       {¶ 8} Brown argues that he was entitled to a new trial because he was surprised and
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the proceedings were irregular where the victim alleged for the first time at trial that an

instance of sexual abuse occurred at a site other than the farm. While Brown argues on

appeal that such testimony constituted a Brady violation, we need not address the matter as

such, given that Brown moved for a new trial, but did not argue a Brady violation to the trial

court in his motion. Instead, Brown argued only that the information about a second location

was not disclosed before trial, and as such, Brown was unable to prepare a defense or cross-

exam the victim on the point. Brown, however, never alleged that the victim's statement was

material, or that the results of his trial would have been different, as is required pursuant to

the Brady standard. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963).

       {¶ 9} Moreover, and even if Brown properly argued a Brady violation in the trial court,

we note the information regarding an additional location was, in fact, addressed at trial, and

as such, could not form the basis of a Brady claim. See State v. Hanna, 95 Ohio St.3d 285,

2002-Ohio-2221, ¶ 82 (denying Brady claim where the evidence in question "was presented

during the trial [and not after the trial as in Brady]" so that "no Brady violation exists")

(Emphasis sic.); State v. Payne, 10th Dist. Franklin No. 09AP-107, 2010-Ohio-1018, ¶ 31.

("if the evidence is disclosed during the trial, there is no Brady violation") (Emphasis sic.); and

State v. Clarke, 12th Dist. Butler No. CA2015-11-189, 2016-Ohio-7187, ¶ 40 ("However, a

Brady violation occurs only where suppressed exculpatory evidence is discovered after trial.

* * * Even if the evidence is disclosed during the trial, there is no Brady violation").

       {¶ 10} If a possible Brady violation or a failure of discovery is first determined during

trial, the proper remedy is a motion for an order of continuance pursuant to Crim.R. 16. State

v. Brown, 2d Dist. Montgomery No. C.A. Case No. 12949, 1992 Ohio App. LEXIS 4991

(Sept. 30, 1992). Absent a showing that a continuance or other order, such as a mistrial,

would remedy the prejudice concerned, a failure to move for continuance or other

appropriate order waives the objection. State v. Wickline, 50 Ohio St.3d 114 (1990).
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       {¶ 11} The record indicates that the victim testified during the state's case-in-chief

that Brown forced her to masturbate him at a location other than the farm where she alleged

all the other sexual abuse occurred. The state does not deny that the evidence was not

made available to Brown during discovery because the victim only disclosed the specific

instance of abuse the Friday before the trial started. Even so, the victim's testimony, aside

from the location it was alleged to have occurred, was cumulative to the other testimony

given regarding the times Brown forced the victim to masturbate him as part of his ongoing

sexual abuse of the victim. Moreover, Brown never asked for a continuance to investigate

the issue or prepare a new or different defense based on the allegation that the sexual abuse

also occurred at a different location.

       {¶ 12} There is no indication in the record that the evidence regarding the sexual

abuse taking place at another location materially affected Brown's rights. Brown heavily

cross-examined the victim about her credibility, and specifically raised questions regarding

the victim's changing story. Thus, the trial court was well-aware of the defense's strategy of

casting the victim as a liar and asking the trial court to believe that her testimony lacked

credibility as compared to Brown's own testimony that he did not sexually abuse the victim.

       {¶ 13} The fact that the trial court understood the defense strategy is apparent when

reviewing its entry denying Brown's motion for a new trial in which it stated,

              Even if the court were to assume that Defendant has established
              that there was misconduct or surprise, the Court does not find
              that there is a strong probability that a different result would be
              reached at a second trial. Defendant's defense was simply that
              the alleged victim * * * was lying when she testified about the
              various sexual encounters. He denied all of the claims of sexual
              misconduct. Defendant simply speculates that had he been
              aware of a claim that an incident happened at a second location
              [the] same may have led to additional fact witnesses, helped to
              establish a time line, or provided a potential alibi defense. In the
              Court's opinion, said speculation is not sufficient to support a
              motion for a new trial.


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         {¶ 14} We agree with the trial court that Brown's speculation was insufficient to

demonstrate his right to a new trial. Having found that the trial court did not abuse its

discretion in denying Brown's motion for a new trial, we overrule Brown's first assignment of

error.

         {¶ 15} Assignment of Error No. 2:

         {¶ 16} APPELLANT RECEIVED THE INEFFECTIVE ASSISTANCE OF COUNSEL.

         {¶ 17} Brown argues in his second assignment of error that he received ineffective

assistance of counsel because his trial counsel failed to offer impeachment evidence and

question the victim on prior false allegations.

         {¶ 18} To prevail on an ineffective assistance of counsel claim, appellant must show

his trial counsel's performance was deficient, and that he was prejudiced as a result. State v.

Clarke, 12th Dist. Butler No. CA2015-11-189, 2016-Ohio-7187, ¶ 49; Strickland v.

Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052 (1984). Trial counsel's performance will

not be deemed deficient unless it fell below an objective standard of reasonableness.

Strickland at 688. To show prejudice, appellant must establish that, but for his trial counsel's

errors, there is a reasonable probability that the result of his trial would have been different.

Id. at 694.

         {¶ 19} The failure to satisfy either prong of the Strickland test is fatal to an ineffective

assistance of counsel claim. Clarke at ¶ 49. Counsel is strongly presumed to have rendered

adequate assistance and made all significant decisions in the exercise of reasonable

professional judgment. State v. Burns, 12th Dist. Clinton No. CA2013-10-019, 2014-Ohio-

4625, ¶ 7.

         {¶ 20} Brown first alleges that his trial counsel was ineffective for failing to ask for a

recess to investigate the victim's claim that an instance of sexual abuse occurred at a

location other than the farm. As previously stated, however, the victim's testimony regarding
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Brown forcing her to masturbate him at a different location was cumulative to many other

instances of abuse that occurred during the years that Brown molested the victim, and did

not form the basis for any of the charges for which Brown stood trial. There is no indication

in the record that the results of Brown's trial would have been different had counsel asked for

a continuance to investigate one additional instance of sexual abuse as described by the

victim where the defense strategy was that Brown never sexually abused the victim

regardless of location.

       {¶ 21} Moreover, Brown claims that the failure of counsel to investigate the issue

denied him the opportunity to impeach the victim's credibility. The record, however, indicates

that defense counsel's strategy during the entire bench trial was to challenge the victim's

credibility throughout with cross-examination. Defense counsel did challenge the victim's

credibility on many occasions. The trial court, acting as the trier of fact, found the victim's

testimony more credible than Brown's, and the results of Brown's trial would not have been

different had defense counsel attempted to impeach the victim's credibility one more time.

       {¶ 22} Brown speculates as to the impeachment value of any testimony his counsel

might have been able to develop. Extrinsic evidence from other witnesses may have

contradicted the victim, but it does not necessarily mean that the victim was not telling the

truth. Any effect upon the trial court would simply remain unknown, and we cannot say that

the result of the trial would have been any different.

       {¶ 23} Brown next claims that his trial counsel was ineffective for not questioning the

victim about her previous claims of sexual abuse by other men. Brown asserts that had his

trial counsel questioned the victim about her previous allegations, the trial court would have

seen her as a "problem child who had lied about many things in her life," including that she

made false allegations regarding sexual abuse. However, the record only indicates that a

third person who testified at trial indicated that she had heard that the victim had been
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sexually abused in the past. Yet, the victim never told the witness directly that she had been

sexually abused, let alone, that she had made false allegations involving sexual abuse in the

past.

        {¶ 24} There is simply no indication in the record to support such a contention.

Brown has not supported his argument with any certainty on appeal that the victim would

have testified on cross-examination that she made false allegations about being abused in

the past. Even if defense counsel had asked the victim if she had ever made false

allegations in the past, the fact remains that the trial court found the victim's testimony

credible that Brown forced her into sex acts with him – regardless of what had or had not

occurred with other men in the past. As such, and absent a showing that the results of

Brown's trial would have been different, we find no ineffective assistance of counsel. Brown's

second assignment of error is overruled.

        {¶ 25} Judgment affirmed.


        HENDRICKSON, P.J., and S. POWELL, J., concur.




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