[Cite as State v. Payne, 2013-Ohio-5230.]


STATE OF OHIO                     )                 IN THE COURT OF APPEALS
                                  )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                       C.A. No.      26655

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
BROLIN D. PAYNE                                     COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellant                                   CASE No.   CR 12 01 0028

                                 DECISION AND JOURNAL ENTRY

Dated: November 27, 2013



        MOORE, Presiding Judge.

        {¶1}     Defendant, Brolin Payne, appeals from the judgment of the Summit County Court

of Common Pleas. We affirm.

                                               I.

        {¶2}     On January 17, 2012, the Summit County Grand Jury indicted Mr. Payne,

charging him with one count of rape in violation of R.C. 2907.02(A)(1)(b) and one count of

gross sexual imposition in violation of R.C. 2907.05(A)(4).     These charges stemmed from

alleged offenses committed by Mr. Payne against an eight-year-old child, K.B., during the time

period between August 1, 2001 and January 31, 2002.

        {¶3}     Mr. Payne pleaded not guilty, and he filed a demand for the State to produce

discovery. As part of the State’s response, it produced an audio recording of what it termed a

“one party consent call” between K.B., who was then nineteen years old, and Mr. Payne.

Detective Rex Lott of the Akron Police Department had recorded this call. Mr. Payne moved to
                                               2


suppress the recording, arguing that the call was made in violation of R.C. 2933.52, and that Mr.

Payne’s statements made during the telephone conversation amounted to an involuntary

confession.   Thereafter, the trial court held a hearing on the motion to suppress.      During

Detective Lott’s testimony at the suppression hearing, he referenced and produced a sheet of

paper on which he had made notes for K.B. during the call. This document was admitted into

evidence as a court exhibit. The document consists of a ruled sheet of paper containing the

following handwritten notes:

       12-29 @ 17:25

       We have a problem.

       Let him talk

       What should I say when they ask …

       R U still there?

       They already know.

       & they know about [name omitted]

       Most of it

       Finger in lick

       What is the time limit

       Statute of limitations

       Gotta go Jod[y]’s coming

Further, the question of “Do u know,” is written vertically in the left margin of the paper. The

recording of the telephone conversation was also admitted into evidence. During the telephone

conversation, K.B. informed Mr. Payne that another individual, “Jody,” had become aware of

what had happened between K.B. and Mr. Payne. K.B. informed Mr. Payne that she did not

know what to do, because she was concerned that Mr. Payne would get into trouble. K.B.
                                                  3


testified that this was part of a ruse that she had utilized in conducting the call in order to elicit

responses from Mr. Payne. During the conversation, K.B. referenced most of the phrases set

forth in the detective’s handwritten notes. She asked Mr. Payne for advice on what to say to the

authorities, asked if he was still there, advised him that “they know most of it” and that she told

Jody “about the fingering and the licking[.]”     K.B. then asked Mr. Payne if he knew what the

statute of limitations was, and she ended the call by saying that she had to go because Jody was

coming. In response to K.B.’s statements and questions, Mr. Payne did not directly admit or

deny any allegations; however, he advised K.B. that she did not have to say anything to the

police, and the police could not do anything if she did not say anything. He did not ask her to

what she was referring when she commented on “what happened” between them ten years ago or

specifically that she had told Jody about “the fingering and the licking[.]” Further, Mr. Payne

apologized to K.B., saying that he “didn’t mean for things to go the way that they did,” and

telling her that he loved and cared about her.

       {¶4}    After the suppression hearing, Mr. Payne filed a motion in limine, asking the

court to exclude the telephone conversation from evidence at trial, arguing that the State had

withheld documentation which was material to his defense by failing to turn over Detective

Lott’s notes in response to the demand for discovery. The trial court held a hearing on Mr.

Payne’s motion in limine. Thereafter, the trial court denied Mr. Payne’s motions to suppress and

in limine.

       {¶5}    The case proceeded to a jury trial. During voir dire, the State peremptorily

challenged the only African-American venireperson.          The State provided purportedly race-

neutral grounds for excusing the juror in anticipation of a Batson objection to the State’s use of
                                                  4


its peremptory challenge. Mr. Payne objected to the use of the challenge, and, after hearing from

the parties, the trial court overruled Mr. Payne’s objection and excused the potential juror.

          {¶6}   During the trial, K.B. testified to several incidents of sexual behavior between Mr.

Payne and herself. She then identified the recording of her conversation and Detective Lott’s

notes made during the conversation. The recorded telephone conversation was played to the

jury. At the close of the State’s case, the recording was admitted into evidence over Mr. Payne’s

objection, and the detective’s notes also were admitted as an exhibit. Mr. Payne then testified on

his own behalf, denying much of the behavior alleged by K.B.

          {¶7}   After deliberating, the jury found Mr. Payne guilty on both counts contained in

the indictment. In a sentencing entry issued on September 10, 2012, the trial court sentenced Mr.

Payne to a total period of incarceration of twenty-five years to life. Mr. Payne timely filed a

notice of appeal from the sentencing entry, and he now presents two assignments of error for our

review.

                                                  II.

                                  ASSIGNMENT OF ERROR I

          THE TRIAL COURT COMMITTED PLAIN ERROR AND ABUSED ITS
          DISCRETION IN ALLOWING THE “ONE-PARTY CONSENT CALL” TO BE
          ADMITTED AS AN EXHIBIT AND TESTIMONY BY WITNESSES
          CONCERNING THE SAME WHERE THE STATE OF OHIO UNDER
          CRIM.[R.] 16 AND CRIM.[R.] 12 FAILED TO DISCLOSE MATERIALS
          RELATED TO THE “ONE-PARTY CONSENT CALL” THAT WERE
          ESSENTIAL IN PREPARATION OF [MR.] PAYNE’S DEFENSE. THIS
          FAILURE TO DISCLOSE EVIDENCE LED TO THE DENIAL OF [MR.]
          PAYNE’S RIGHT TO A FAIR TRIAL.

          {¶8}   In his first assignment of error, Mr. Payne argues that he was denied a fair trial

because the trial court admitted evidence of, and allowed testimony pertaining to, the recorded
                                                 5


telephone conversation despite the State’s failure to provide Detective Lott’s notes in response to

the demand for discovery. We disagree.

       {¶9}    Questions regarding the admission or exclusion of evidence are within the trial

court’s discretion. State v. Sage, 31 Ohio St.3d 173, 180 (1987). The term abuse of discretion

implies that the court’s attitude is unreasonable, arbitrary or unconscionable. State v. Adams, 62

Ohio St.2d 151, 157 (1980). However, “a court’s ruling on a motion in limine does not preserve

issues related to evidentiary rulings for appeal.”      State v. Garfield, 9th Dist. Lorain No.

09CA009741, 2011-Ohio-2606, ¶ 55. “The law is well settled that failure to contemporaneously

object during the identification of [evidence] and testimony regarding it forfeits appellate

review.” State v. Rice, 9th Dist. Summit No. 26116, 2012-Ohio-2174, ¶ 20 quoting State v.

Cross, 9th Dist. Summit No. 25487, 2011-Ohio-3250, ¶ 49.

       {¶10} Here, although Mr. Payne filed a motion in limine pertaining to the recorded

conversation, and he objected to the recording at the admission phase of trial after the State

rested, he did not object contemporaneously when the State identified the recording through

Detective Lott’s and K.B.’s testimony. See Rice at ¶ 21. Accordingly, Mr. Payne has forfeited

his argument pertaining to admission of the recording save for that of plain error. See id. Notice

of a plain error is taken with the utmost caution and only to prevent a manifest miscarriage of

justice. State v. Bray, 9th Dist. Lorain No. 03CA008241, 2004-Ohio-1067, ¶ 12. Therefore, we

will not reverse the trial court decision based upon plain error unless it has been established that

the trial court outcome clearly would have been different but for the alleged error. Id.

       {¶11} Mr. Payne argues that the trial court committed plain error in admitting evidence

of, and testimony pertaining to, the telephone conversation because Detective Lott’s notes

pertaining to the conversation were not provided to Mr. Payne in response to his demand for
                                                 6


discovery. Mr. Payne maintains that, had he received the notes prior to moving to suppress the

evidence of the telephone conversation, he could have successfully argued that suppression was

warranted on the basis that K.B. was acting as an “agent of the state.” Mr. Payne premises his

argument on Crim.R. 16(B), the Second District’s decision in State v. Hauptstueck, 2d Dist.

Montgomery No. 24013, 2011-Ohio-3502, and R.C. 2933.52.

       {¶12} In his motion in limine, Mr. Payne argued that the State was required to produce

Detective Lott’s notes pursuant to Crim.R. 16(B), which provides, in relevant part:

       Upon receipt of a written demand for discovery by the defendant, and except as
       provided in * * * this rule, the prosecuting attorney shall provide copies or
       photographs, or permit counsel for the defendant to copy or photograph, the
       following items related to the particular case indictment, information, or
       complaint, and which are material to the preparation of a defense, or are intended
       for use by the prosecuting attorney as evidence at the trial, or were obtained from
       or belong to the defendant, within the possession of, or reasonably available to the
       state * * *:

       ***

       (5) Any evidence favorable to the defendant and material to guilt or punishment[.]

“Potentially exculpatory evidence subject to disclosure under Crim.R. 16 is material ‘only if

there is a reasonable probability that, had the evidence been disclosed to the defense, the result of

the proceeding would have been different.’” State v. Iacona, 9th Dist. Medina No. CA 2891-M,

2000 WL 277911, *5 (Mar. 15, 2000), quoting State v. Johnston, 39 Ohio St.3d 48 (1988),

paragraph five of the syllabus.

       {¶13} Mr. Payne argues that the detective’s notes were favorable to him and material to

his defense, because, through the notes, he could establish that K.B. was following a “script,”

which in turn made her an “agent of the state.” In his merit brief, Mr. Payne argues that an agent

of the state may not intercept a wire, oral or electronic communication without a warrant. In

support of this proposition, Mr. Payne relies on R.C. 2933.52 and the Second District’s holding
                                                 7


in Hauptstueck.     Assuming without deciding that the State was required to produce the

detective’s notes in response to Mr. Payne’s demand for discovery, we are not persuaded by Mr.

Payne’s argument that the trial court committed plain error in failing to exclude the evidence of

the conversation on the basis that it was intercepted in violation of R.C. 2933.52.

       {¶14} R.C. 2933.52(A)(1) provides that “[n]o person purposely shall * * * intercept * *

* a wire, oral, or electronic communication[.]” However, this prohibition does not apply to the

interception of communications where a party to the communication intercepts the

communication, or where the party provides advance consent to another to intercept the call.

R.C. 2933.52(B)(4). Likewise, the prohibition does not apply to a law enforcement officer who

is a party to the call. R.C. 2933.52(B)(3). Evidence of a communication intercepted in violation

of R.C. 2933.52 is subject to suppression. See R.C. 2933.62(A), and R.C. 2933.63(A).

       {¶15} In Hauptstueck, 2011-Ohio-3502, the Second District reviewed R.C. 2933.52. In

that case, the mother of a sexual assault victim recorded telephone calls between herself and the

defendant after an officer advised her that she was permitted to do so. Id. at ¶ 4. The defendant

was convicted of multiple counts related to the sexual assault of the victim, and he appealed his

convictions to the Second District. Id. at ¶ 1. As part of his argument on appeal, the defendant

contended that the telephone recordings should have been suppressed because the victim’s

mother, following the advice of the officer, acted as a government agent, and a warrant was

required for the mother to record the conversations. Id. at ¶ 30. The Second District rejected this

argument, concluding that it “lack[ed] merit for at least two reasons.” Id. at ¶ 31. First, the court

determined that the victim’s mother was not acting as a government agent. Id. In making this

determination, the Second District noted that the officer “did not instruct her to record any

conversations, did not provide her with a recording device, did not arrange the conversation, and
                                                8


was not present when they occurred.” Id. Second, the Second District concluded that the

defendant’s argument was “unpersuasive even assuming, purely arguendo, that [the victim’s

mother] did qualify as a State agent.” Id. at ¶ 32. The Second District stated that it was “aware

of no authority that precludes a law enforcement officer or other government agent from

speaking to a suspect on the telephone and recording the conversation without a warrant.” Id. at

¶ 32.

        {¶16} In his merit brief, Mr. Payne has relied on Haupstueck for the proposition that the

exception allowing interception of a communication in R.C. 2933.52(B)(3) “does not apply to a

law[ ]enforcement officer who intercepts a wire, oral, or electronic communication, if the officer

is not a party to the communication and the consenting party is an agent of the state.” However,

the Second District did not determine that the R.C. 2933.52(B)(3) exception would not be

applicable to a consenting party who is an agent of the state. See generally Hauptstueck.

Instead, it concluded that, even if the consenting party were a government agent, the Second

District knew of no law which would preclude the consenting party from recording the

conversation. Id. at ¶ 32. Similarly, here we cannot discern how the categorization of K.B. as a

government agent would result in a violation of R.C. 2933.52. See id. Consequently, we cannot

say that, reviewing this challenge on a plain error standard, had the detective’s notes been

supplied with the State’s response to discovery, that the evidence of the telephone call would

have been suppressed, or that the outcome of the proceeding would have been different.

        {¶17} Accordingly, the trial court did not commit plain error in admitting the recording

into evidence, and Mr. Payne’s first assignment of error is overruled.
                                               9


                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND ABUSED
       ITS DISCRETION BY DENYING THE BATSON CHALLENGE SUBMITTED
       BY [MR.] PAYNE.

       {¶18} In his second assignment of error Mr. Payne argues that the trial court erred in

overruling his Batson objection to the State’s peremptory challenge of a prospective juror. We

disagree.

       {¶19} “Although a prosecutor ordinarily is entitled to exercise permitted peremptory

challenges for any reason at all, as long as that reason is related to his view concerning the

outcome of the case to be tried, the Equal Protection Clause forbids the prosecutor to challenge

potential jurors solely on account of their race[.]” (Internal citations and quotations omitted.)

Batson v. Kentucky, 476 U.S. 79, 89 (1986). A defendant has a “right to be tried by a jury whose

members are selected by nondiscriminatory criteria,” and a defendant’s own race “is irrelevant to

a defendant’s standing to object to the discriminatory use of peremptory challenges.” Powers v.

Ohio, 499 U.S. 400, 404, 416 (1991).       This Court reviews whether a party exercised its

peremptory challenges in a discriminatory manner under the clearly erroneous standard.

Hernandez v. New York, 500 U.S. 352, 364-65 (1991); see also State v. Vinson, 9th Dist. Summit

No. 23739, 2007-Ohio-6045, ¶ 21, and Akron v. Burns, 9th Dist. Summit No. 21338, 2003-Ohio-

3785, ¶ 15.

       {¶20} Courts employ a three-part test to determine whether a peremptory challenge is

based on race. State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, ¶ 106; State v. Jones, 9th

Dist. Summit No. 22231, 2005-Ohio-1275, ¶ 27. First, the defendant must establish a prima

facie case of discriminatory use of peremptory challenges by the prosecution. Batson at 96-97.
                                                 10


       {¶21} Second, after the defendant makes his prima facie case, the burden shifts to the

prosecution to provide a race-neutral explanation for the peremptory challenge. Id. at 97. To

meet its burden, “the prosecutor must give a clear and reasonably specific explanation of his

legitimate reasons for exercising the challenge[.]” (Internal citations and quotations omitted.)

Batson at 98, fn. 20. This explanation must be “based on something other than the race of the

juror.” Hernandez at 360. However, the prosecution does not have to provide “an explanation

that is persuasive, or even plausible.” Purkett v. Elem, 514 U.S. 765, 768 (1995). “[T]he issue is

the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in

the prosecutor’s explanation, the reason offered will be deemed race-neutral.” (Quotations and

citation omitted.) Id. “Unlike challenges for cause, a peremptory challenge may be exercised for

any racially-neutral reason.” (Emphasis sic.) State v. Moss, 9th Dist. Summit No. 24511, 2009-

Ohio-3866, ¶ 12.

       {¶22} In the third step of the Batson analysis, the trial court must determine whether,

under all the relevant circumstances, the defendant has met his burden of proving purposeful

racial discrimination. Batson at 96-97. The trial court must consider the persuasiveness and

credibility of the justification offered by the prosecution. Hicks v. Westinghouse Materials Co.,

78 Ohio St.3d 95, 99 (1997), citing Purkett at 768. It must determine whether the neutral

explanation offered by the prosecution is credible or is instead a pretext for unconstitutional

discrimination. Hernandez at 363. The trial court’s finding turns largely on evaluations of

credibility and is given great deference. Batson at 98, fn. 21.

       {¶23} Here, the State exercised a peremptory challenge to excuse Juror No. 16, an

African-American man. The State indicated that it anticipated a Batson challenge from the

defense, and it provided the following as racially-neutral reasons in support of its challenge: (1)
                                                11


Juror No. 16 had acknowledged that he had been a witness in a murder case and (2) Juror No. 16

was the acquaintance of a juvenile who had been indicted for the rape of a three-year old.

Thereafter, Mr. Payne did raise a Batson challenge, and, after hearing from both parties, the trial

court determined that the State’s bases for challenging the prospective juror were race-neutral,

and it overruled Mr. Payne’s objection.

       {¶24} On appeal, Mr. Payne has set forth the law applicable to a Batson analysis, and he

has set forth the race-neutral reasons provided by the State as set forth above. However,

although Mr. Payne maintains that the trial court’s decision to overrule his objection was “clearly

an erroneous ruling,” he has developed no argument demonstrating clear error. As this Court has

repeatedly held, “[i]f an argument exists that can support [an] assignment of error, it is not this

[C]ourt’s duty to root it out.” Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998 WL

224934, *8 (May 6, 1998). Therefore, this Court declines to create such an argument on Mr.

Payne’s behalf. See App.R. 16(A)(7) (appellant’s brief to include “[a]n argument containing the

contentions of the appellant with respect to each assignment of error presented for review and the

reasons in support of the contentions”).

       {¶25} Accordingly, Mr. Payne’s second assignment of error is overruled.

                                               III.

       {¶26} Mr. Payne’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                12


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     CARLA MOORE
                                                     FOR THE COURT



HENSAL, J.
CONCURS.

CARR, J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

STEPHANIE YUHAS, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
