[Cite as State v. Brown, 2017-Ohio-7701.]



                           STATE OF OHIO, MAHONING COUNTY
                                  IN THE COURT OF APPEALS
                                       SEVENTH DISTRICT

STATE OF OHIO,                                  )
                                                )
        PLAINTIFF-APPELLEE,                     )
                                                )           CASE NO. 15 MA 0130
V.                                              )
                                                )                  OPINION
PAUL BROWN,                                     )
                                                )
        DEFENDANT-APPELLANT.                    )

CHARACTER OF PROCEEDINGS:                       Criminal Appeal from Court of Common
                                                Pleas of Mahoning County, Ohio
                                                Case No. 09 CR 1231

JUDGMENT:                                       Affirmed

APPEARANCES:
For Plaintiff-Appellee                          Paul Gains
                                                Prosecutor
                                                Ralph Rivera
                                                Assistant Prosecutor
                                                21 West Boardman St., 6th Floor
                                                Youngstown, Ohio 44503-1426

For Defendant-Appellant                         Attorney John Juhasz
                                                7081 West Boulevard, Suite 4
                                                Youngstown, Ohio 44512-4362

JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Carol Ann Robb


                                                Dated: September 12, 2017
[Cite as State v. Brown, 2017-Ohio-7701.]
DONOFRIO, J.

        {¶1}    Defendant-appellant, Paul Brown, appeals from a Mahoning County
Common Pleas Court judgment overruling his motion to dismiss the indictment
against him on murder and weapons charges.
        {¶2}    The facts are taken from appellant’s previous appeal.

                On the night of May 25, 2009, April Jackson filed a missing
        persons report as to her seventeen-year-old son Ashten Jackson. It
        was reported that Ashten left the house the night before with appellant
        Paul Brown and a Raymond Patterson. Ashten briefly returned home at
        4:00 a.m., retrieved a black hooded sweatshirt, and left again with
        Brown and Patterson. While a Youngstown police officer was taking
        this report, Ms. Jackson pointed out that appellant was driving past the
        house. The officer yelled for appellant to stop his vehicle. That officer
        ended up arresting appellant as he was armed with a weapon (which
        Ms. Jackson said was stolen from her).
                Appellant was then interviewed by Detectives Kelty and Kelly just
        as May 26 began. Appellant stated that Ashten Jackson wanted to
        participate in a robbery with Raymond Patterson in the early morning
        hours of May 25. Appellant denied involvement. He noted that Ms.
        Jackson called him on the morning of May 25 asking for help finding her
        son and that he drove her to various places.
                Appellant claimed that he later saw Patterson, who was fidgety
        as he “stood there” and told him that it went “all bad” over on the east
        side, quoting Patterson as saying, “Man, it's all bad. The theory went
        bad, man. I think he got hit. It went all bad.”       (DVD Tr. 38, 40).
        Appellant also alleged that after “standing” there and speaking to him
        for 15 minutes, Patterson gave him Ashten's gun. (DVD Tr. 3839). In
        explaining that he was arrested while taking the gun back to Ms.
        Jackson, appellant added that the police had his phone so they could
        see that she had been calling him. (DVD Tr. 39-40).
                                                                        -2-


       The detectives thereafter interviewed Raymond Patterson, who
said appellant and Ashten were planning to rob a drug dealer on the
east side. He provided police with the location of the house where the
target lived and his nickname.
       The person in that house with the same nickname provided by
Patterson told police that an armed person knocked on his door at 4:00
a.m., while another person waited in the car. The armed visitor called
himself Paul and said he received a call that his friend had some
trouble there. The resident refused to open the door. The resident
described the visitor and the vehicle.
       On May 27, the detectives were contacted by a person stating
that appellant confessed to him the shooting of Ashten at a May 25
Memorial Day picnic. Ashten's body was found in a field on the east
side (near the target house) on May 30, 2009. Ashten had been shot
by the weapon recovered from appellant during his arrest.
       On November 5, 2009, appellant was indicted for murder with a
firearm specification, having a weapon under a disability, and carrying a
concealed weapon. A trial began in January of 2012. There was an
issue with the failure to produce a police report from Raymond
Patterson's arrest by another officer. The defense obtained this report
from the defendant's attorney in a federal case. The court considered
citing a detective for contempt but concluded that the report was not
maliciously denied to the defense. Then, an issue arose during Ms.
Jackson's testimony when it was realized that her interview was not
provided to the defense.
       The trial court declared a mistrial. After various trial dates were
scheduled and continued, a trial was set to begin on April 16, 2013.
Before a jury was assembled, there was an off-the-record discussion
concerning appellant's cell phone. The trial court then ordered Net 10
                                                                                -3-


      aka TracFone to provide a pin number for voicemail, the original SIM
      card number for the phone number, and an electronic copy of any
      voicemails.
      ***
              On September 5, 2013, the defense filed a motion to dismiss,
      asserting that appellant's due process rights were violated when the
      police tampered with/destroyed material exculpatory evidence or in the
      alternative tampered with/destroyed potentially useful evidence in bad
      faith. The evidence said to be tampered with was the defendant's cell
      phone containing a relevant voicemail message. The defense claimed
      that during the May 26 interview, appellant “told detectives to check his
      cell phone, as there was a message to him from state's witness Ray
      Patterson, wherein Patterson told Defendant that ‘it went bad, I think he
      got hit,’ meaning the victim in this case.” The defense stated that this
      message shows that Patterson, not appellant, was present at the
      robbery.

(Emphasis sic); State v. Brown, 7th Dist. No. 13 MA 172, 2014-Ohio-5824, ¶ 7-14,
16.
      {¶3}    The trial court initially granted appellant’s motion to dismiss. But on the
state’s motion for relief from judgment, the court vacated its prior ruling and granted
the relief requested by the state. In so ruling, the court relied on testimony from a
BCI agent that the SIM card in the phone when appellant was arrested was the one
currently in the phone (and the one in the phone when the court ordered its
examination). Id. at ¶ 39. Appellant filed an appeal from the judgment vacating the
dismissal.    Brown, 2014-Ohio-5824.      We affirmed the trial court’s judgment on
appeal. Id.
      {¶4}    Appellant’s next trial began on June 15, 2015. A jury was sworn in and
the first witness testified. William Nolan was the second witness. The state’s theory
of the case was that appellant, Patterson, and Ashten had a plan to rob Nolan on the
                                                                                  -4-


night in question.   (Tr. 44-45).     Ashten’s body was later found in a field behind
Nolan’s house.
       {¶5}   Nolan testified that at 4:00 a.m. on the day in question the motion-
detector light went on outside of his house and he noticed a man in his driveway. (Tr.
107, 110). Nolan stated he had never seen this man before. (Tr. 110). Nolan stated
that the man identified himself as Paul Brown. (Tr. 110). According to Nolan, the
man stated that Ray Patterson told him something was going on and Patterson
needed his help. (Tr. 111). The man also told Nolan that he had a gun on him,
although Nolan did not see a gun. (Tr. 111). Nolan told the man to get off of his
property. (Tr. 112). The man then jogged back to the gold SUV that was in the
middle of the street, got in the passenger side, and the vehicle drove away. (Tr. 111-
113). Nolan further testified that the next day the police “busted” down his door and
began asking him about a murder. (Tr. 115). Nolan stated that he later gave a
statement to the police. (Tr. 116).
       {¶6}   The court then took a recess. A video was shown to defense counsel.
(Tr. 117). The video was of Nolan giving his statement to the police. In the video,
the detective asked Nolan to see if he recognized anyone from the night in question.
The detective gave Nolan a photo array that included appellant’s photograph. Nolan
first indicated that the photograph of appellant “kind of” looked like him. But Nolan
ultimately identified someone in the array other than appellant as the person he saw
on the night in question who identified himself as “Paul Brown.” The detective then
pointed out appellant’s photograph and told Nolan “No, the first one you went to is
Paul Brown.” The detective said, “that’s Paul right there” and pointed at appellant’s
photograph.
       {¶7}   Defense counsel moved for a dismissal or, in the alternative, for a
mistrial. (Tr. 119). The trial court recognized that defense counsel had never seen
the video prior to viewing it during trial. (Tr. 125). The court found that the non-
disclosure of the video was unintentional by the state. (Tr. 132). The court then
declared a mistrial. (Tr. 132). It rescheduled the trial for July 20, 2015. (Tr. 133).
                                                                             -5-


       {¶8}   On July 13, 2015, appellant filed a motion for discharge. Appellant
argued the non-disclosure of the video was not a mere discovery violation but was a
Brady violation requiring dismissal of the charges.      He contended his retrial was
barred on double jeopardy grounds. Appellant requested a hearing on his motion
along with findings of fact.
       {¶9}   Without holding a hearing, the trial court overruled appellant’s motion.
       Appellant filed a timely notice of appeal on August 5, 2015. He now raises
three assignments of error.
       {¶10} Appellant’s first assignment of error states:

              THE TRIAL COURT ERRED IN FAILING TO CONDUCT AN
       EVIDENTIARY HEARING AND IN FAILING TO ISSUE FINDINGS OF
       FACT, CONCLUSIONS OF LAW AS TO THE REASONS IT DENIED
       THE MOTION TO DISMISS, WHICH IS A DENIAL OF THE LIBERTIES
       GUARANTEED APPELLANT BY U.S. CONST. AMEND. V AND XIV,
       AND BY OHIO CONST., ART. I, §§1, 2, AND 16.

       {¶11} Appellant argues the trial court should have, and failed to, conduct an
evidentiary hearing and issue findings of fact and conclusions of law on his motion to
dismiss the indictment. He claims the court denied him the opportunity to present all
pertinent evidence regarding his argument that double jeopardy barred his retrial.
Appellant asserts this court cannot effectively review his claims because the trial
court simply overruled his motion without addressing the factual or constitutional
issues he presented. Thus, appellant asks that we remand this case with orders for
the trial court to hold an evidentiary hearing on his motion to dismiss and to issue
findings of fact and conclusions of law after the hearing.
       {¶12} We review a trial court's decision on a motion to dismiss an indictment
for abuse of discretion. State v. Keenan, 143 Ohio St.3d 397, 2015-Ohio-2484, 38
N.E.3d 870, ¶ 7.      Abuse of discretion connotes more than an error of law or
judgment; it implies that the trial court's attitude is unreasonable, arbitrary, or
                                                                                     -6-


unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
       {¶13} Crim.R. 12(F) governs pre-trial motions to dismiss. Appellant’s motion
to dismiss can be viewed as a pre-trial motion given that when it was filed, his next
trial was set to begin soon. The rule provides that the court may decide the motion
based on briefs, affidavits, proffers, a hearing, or other appropriate means. Crim.R.
12(F). It further provides that “[w]here factual issues are involved in determining a
motion, the court shall state its essential findings on the record.” Crim.R. 12(F).
       {¶14} During his opening statement, the prosecutor told the jury that Nolan
would corroborate Patterson’s story that a man named “Paul” was outside of Nolan’s
home on the night in question and that “Paul” told Nolan he had a gun. (Tr. 50-51).
       {¶15} In his motion to dismiss, appellant emphasized that in the video of
Nolan’s interview, Nolan identified someone other than appellant. Thus, appellant
argued the video clearly called appellant’s identity into question. He asserted in his
motion that this was the reason the video was not provided to the defense.
       {¶16} Appellant also alleged in his motion that following the June 17, 2015
mistrial, counsel met with the prosecutor and Youngstown Police Detective to go
through the entire police file, prosecutor’s file, and internal affairs file in order to avoid
any other non-disclosures.       Appellant asserted that three relevant letters were
discovered that were also never provided to him in discovery.
       {¶17} There is no Criminal Rule or law that obligated the trial court to hold a
hearing on appellant’s motion to dismiss. Moreover, the trial court did make findings
on the record when it was initially faced with appellant’s motion for either a dismissal
or a mistrial. In deciding to grant the mistrial, the court stated:

              The court finds that on no deliberate action of either the State of
       Ohio or defense counsel was the video not disclosed.
              However, the court further finds that this could affect defense
       counsel’s strategy to prepare the case and to try the case in this matter.
       And given the seriousness of the offense, it’s the court’s duty to protect
       his constitutional rights. The Court is going to declare a mistrial.
                                                                                   -7-


(Tr. 132).      Thus, the court found on the record no intentional wrongdoing or
intentional failure to disclose by the state.
          {¶18} Additionally, in responding to appellant’s request for findings of fact, the
court stated that when it granted the mistrial it made clear, on the record, the
reasoning behind its ruling and the facts on which it relied. (July 22, 2015 Judgment
Entry).
          {¶19} The trial court acted within its discretion in denying appellant’s
subsequent motion to dismiss the indictment. The video came to defense counsel’s
attention during Nolan’s testimony. In light of the video, the court continued the
matter until the next day. (Tr. 120-121). The next day, defense counsel stated he
had then had the opportunity to go through the video line by line and was now
prepared to make an argument to the court.            (Tr. 121).   Then, before ruling on
appellant’s oral motion for dismissal or a mistrial, the court listened to arguments by
both defense counsel and the state. (Tr. 121-132). Both sides presented arguments
and the court asked several questions. (Tr. 121-132). The court then issued its ruling
granting the mistrial. (Tr. 132).
          {¶20} Given that the trial court had already listened to arguments and made
findings on the record regarding appellant’s oral motion to dismiss or for a mistrial,
the court did not abuse its discretion in ruling on appellant’s written motion for a
dismissal without holding another hearing.
          {¶21} Accordingly, appellant’s first assignment of error is without merit and is
overruled.
          {¶22} Appellant’s second assignment of error states:

                 THE TRIAL COURT ERRED IN GRANTING A MISTRIAL
          RATHER      THAN      DISMISSING      THE     INDICTMENT,       AS    RE-
          PROSECUTION IS BARRED BY DOUBLE JEOPARDY.

          {¶23} Here appellant contends this court should order that his retrial is barred
by double jeopardy. Appellant argues that when the state’s conduct gives rise to the
                                                                                 -8-


mistrial, then a retrial is barred by double jeopardy. He asserts that in this case there
was the previous issue of the cell phone, police reports and witness statements that
were not furnished to him, and now a photo array in which the witness identified
someone other than him was not furnished to him.             Appellant claims the non-
disclosures by the detective were intended to help the prosecution even if the
prosecutors themselves were personally unaware of the non-disclosures.
       {¶24} When reviewing the denial of a motion to dismiss an indictment on the
grounds of double jeopardy, we are to conduct a de novo review. State v. Anderson,
148 Ohio St.3d 74, 2016-Ohio-5791, 68 N.E.3d 790, ¶ 20.
       {¶25} The Double Jeopardy Clause generally does not bar retrial following a
mistrial. State v. Hubbard, 150 Ohio App.3d 623, 2002-Ohio-6904, 782 N.E.2d 674,
¶ 50, citing Oregon v. Kennedy, 456 U.S. 667, 671, 102 S.Ct. 2083, 72 L.Ed.2d 416
(1982). There is a narrow exception to this rule, however, when the defendant has
been goaded into seeking a mistrial by the prosecutor’s conduct. Hubbard at ¶ 50,
citing State v. Loza, 71 Ohio St.3d 61, 70, 641 N.E.2d 1082 (1994). To invoke the
exception, the prosecutor's conduct must reflect that the state “engaged in an
‘intentional act of deception.’” Hubbard at ¶ 50, citing Loza at 71.
       {¶26} In this case, while discussing the video and when people may have
become aware of it, defense counsel stated that during appellant’s first trial, which
was tried by a different prosecutor, the prosecutor “certainly” had not seen the video.
(Tr. 125).
       {¶27} As to the prosecutors involved in the most recent trial, defense counsel
stated: “I don’t think they had it and didn’t provide it to me. I don’t think that was it.
And obviously they viewed it. So they knew of it. They were aware of it. And
probably assumed that I had viewed it and looked at it.” (Tr. 126).
       {¶28} Later, defense counsel stated: “I’m surely not blaming Mr. Yacovone or
Ms. Cantalamessa [the prosecutors] or Mr. Kelty [the detective who was involved]. In
this case, actually I’ve been looking at - - I’m really not even faulting Kelty. Because I
bet you he was pretty scared.” (Tr. 127).
                                                                                  -9-


       {¶29} And then defense counsel stated: “But you know, I mean, I can’t say
that I believe that this was done intentionally, Your Honor.” (Tr. 128).
       {¶30} Finally, the prosecutor, in offering an explanation, discussed the
evidence and stated that the prosecutor’s office was not attempting to hide anything
from the defense to which defense counsel stated, “I agree with that.” (Tr. 129).
       {¶31} Based on all of the above, the trial court found that the state did not
take deliberate action to not disclose the video. (Tr. 132).
       {¶32} Defense counsel’s statements make clear that he did not believe that
the state acted intentionally in failing to disclose the video of Nolan’s police interview.
Defense counsel stated the prosecutors likely assumed he had seen the video.
Counsel even stated he was not assigning fault to the detective involved.
       {¶33} Moreover, there is no direct evidence to suggest that the failure to
disclose was intentional by the state. The prosecutor denied any intentional non-
disclosure. And significantly, it was during the prosecutor’s questioning of Nolan that
his video-taped interview with police was brought up.            In fact, the prosecutor
specifically asked Nolan if he went to the police station to give a statement to the
police. (Tr. 116). Nolan stated that he did go to the police station to give a statement
and he brought his lawyer. (Tr. 116). It was at this point that defense counsel asked
to approach the bench and the trial court called a recess. (Tr. 117). The parties then
watched the video of Nolan’s interview. (Tr. 117). Defense counsel expressed his
surprise at the video of Nolan’s police interview. (Tr. 117). Had the state been
attempting to conceal the video of Nolan’s interview, it would not have elicited
testimony regarding that interview and brought the video to the trial.
       {¶34} This instance of not disclosing the video to the defense was the second
time the state failed to disclose evidence to the defense. In the first instance, during
appellant’s first trial, the state failed to disclose a police report and an interview. The
trial court declared a mistrial in that case. In this second instance, the state failed to
disclose the video of Nolan’s police interview.       Despite what can be viewed as
shoddy trial preparation, there is no direct evidence in this case that the state
                                                                                 - 10 -


intentionally withheld the video from the defense with the intent to goad appellant into
asking for a mistrial. The Sixth District aptly summed up this situation: “While we
find the repeated failure to make full, timely disclosure of evidence deplorable, we
cannot conclude that the purpose behind the behavior was a desire to force a
mistrial.” State v. Roughton, 132 Ohio App.3d 268, 278, 724 N.E.2d 1193 (6th Dist.).
       {¶35} Because the evidence does not demonstrate that appellant was goaded
into requesting a mistrial by an alleged “intentional act of deception” on the part of the
state, appellant’s re-trial is not barred on double jeopardy grounds.
       {¶36} Accordingly, appellant’s second assignment of error is without merit and
is overruled.
       {¶37} Appellant’s third assignment of error states:

                THE TRIAL COURT ERRED TO APPELLANT’S PREJUDICE
       BY FAILING TO GRANT A MOTION TO DISMISS, AND INSTEAD
       GRANTED A MOTION FOR MISTRIAL, AS ONLY A DISMISSAL WAS
       A   PROPER        REMEDY       FOR     REPEATED        DUE       PROCESS
       VIOLATIONS.

       {¶38} In his final assignment of error, appellant asserts that another mistrial is
not the proper remedy for repeated Brady violations that have caused other mistrials.
He asserts that it is irrelevant whether the prosecutors acted in good faith or not. It is
the fact that exculpatory evidence was not disclosed to him that is relevant here,
appellant argues. Appellant goes on to argue that the state was required to disclose
the video of the photo array to him because it is exculpatory evidence.
       {¶39} In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215
(1963), the United States Supreme Court developed a rule of law, often referred to as
the “Brady rule,” which imposes upon a prosecutor a due process duty to disclose
evidence favorable to the accused. Specifically, the court held that “the suppression
by the prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment, irrespective of
                                                                              - 11 -


the good faith or bad faith of the prosecution.” Id. at 87. Additionally, the duty to
disclose exculpatory evidence extends to those officials acting on the government's
behalf, such as the police. State v. Payne, 10th Dist. No. 09AP-107, 2010-Ohio-
1018, ¶ 30, citing Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 131 L.Ed.2d
490 (1995).
       {¶40} If the favorable evidence is disclosed during the trial, there is no Brady
violation. State v. Hanna, 95 Ohio St.3d 285, 2002-Ohio-2221, 767 N.E.2d 678, ¶ 82.
Accord State v. Bruce, 10th Dist. No. 07AP-355, 2008-Ohio-4370, ¶ 68, State v. Hall,
8th Dist. No. 83361, 2004-Ohio-5963, ¶ 14.
       {¶41} In this case, the video was disclosed to defense counsel during trial.
Moreover, the trial court granted appellant’s motion for a mistrial. Thus, there was no
Brady violation.
       {¶42} Accordingly, appellant’s third assignment of error is without merit and is
overruled.
       {¶43} For the reasons stated above, the trial court’s judgment is hereby
affirmed.

Waite, J., concurs.

Robb, P.J., concurs.
