[Cite as State v. Brown, 2013-Ohio-3608.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                               :       JUDGES:
                                            :
                                            :       Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                :       Hon. Sheila G. Farmer, J.
                                            :       Hon. Craig R. Baldwin, J.
                                            :
-vs-                                        :
                                            :
RARECOLE L.E. BROWN                         :       Case No. CT2013-0004
                                            :
                                            :
        Defendant - Appellant               :       OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Muskingum County
                                                    Court of Common Pleas, Case No.
                                                    CR2012-0146




JUDGMENT:                                           Affirmed in part, Reversed in part,
                                                    Remanded




DATE OF JUDGMENT:                                   August 20, 2013




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

ROBERT L. SMITH                                     DAVID A. SAMS
Assistant Prosecuting Attorney                      Box 40
27 North Fifth Street                               West Jefferson, OH 43162
Zanesville, OH 43701
Muskingum County, Case No. CT2013-0004                                                       2

Baldwin, J.

      {¶1}    Appellant Rarecole L.E. Brown appeals a judgment of the Muskingum

County Common Pleas Court convicting him of felonious assault (R.C. 2903.11(A)(2))

with a firearm specification (R.C. 2941.145) and having a weapon under disability (R.C.

2923.13(A)(3)). Appellee is the State of Ohio.

                            STATEMENT OF FACTS AND CASE

      {¶2}    On June 1, 2012, Justin Minor was living with a friend in Zanesville, Ohio,

whom he knew only by his first name of George. Minor made a living selling drugs,

specifically heroin and crack. He knew George from dealing drugs, and had been living

with George and a man named “T” for about four days. Justin’s brother Samson had

lived in the house at one time, and had installed a camera system in the house. Justin

paid rent to George in drugs rather than cash.

      {¶3}    During the evening of June 1, 2012, Minor was hanging out at the house

with George, T, and appellant, who Minor had known for years. Minor was selling

drugs, and ran out of heroin. Because no one among the group at the house had a

valid driver’s license, Minor called a customer named Nick Large to drive appellant to

Columbus to get more heroin, as well as some crack cocaine. Minor sent $2200 with

them for two ounces of heroin, and another $200 for crack. Minor stayed at the house

with T and George, as well as his girlfriend Keree and a woman named Lisa.

      {¶4}    On the camera system, Minor saw appellant return from Columbus. When

Minor asked appellant for the crack, appellant would not give him the drugs. Initially the

crack was to be split evenly between Nick Large and Minor, but appellant now wanted
Muskingum County, Case No. CT2013-0004                                                       3


some of the crack for his trouble in making the trip to Columbus. Minor agreed to give

appellant half of his share.

      {¶5}    Appellant used a scale in the kitchen to weigh the crack. However, Minor

noticed that appellant was taking the larger pieces for himself and giving Minor the

crumbs. The two of them argued, and appellant pulled out a gun and shot Minor in the

abdomen. Appellant began pacing back and forth, saying, “Look what you made me

do.” Minor told appellant to get out of there and appellant took off running.

      {¶6}    Nick Large called 911 during the early morning hours of June 2, 2012,

and reported the incident as a drive-by shooting. Police arrived and found Minor lying

on the porch, wounded. Police found a hat and a gun about a block away from the

shooting.

      {¶7}    Appellant called Minor while Minor was recuperating in the hospital, and

again after he was released from the hospital. Appellant asked Minor to “keep it in the

streets,” and Minor responded that he would “stick to the script.”

      {¶8}    Police interviewed appellant concerning the shooting. He claimed that he

was not in Zanesville on the day of question.

      {¶9}    Appellant was charged with attempted murder, felonious assault and

having a weapon under a disability. The case proceeded to jury trial in the Muskingum

County Common Pleas Court.

      {¶10}   At trial, appellant admitted that he traveled to Columbus with Nick Large to

pick up drugs for Minor. He testified that he went into the bathroom after returning, and

when he came out Minor said, “Where the fuck is my shit?” Tr. 436. Appellant testified

that he told Minor he gave it to him, and Minor replied, “No, man, my shit short.” Minor
Muskingum County, Case No. CT2013-0004                                                      4


accused appellant of stiffing him, and the two argued. Minor then pulled out a gun.

When appellant tried to take the gun from Minor, the gun went off. He testified that he

lied to police earlier because he was on probation and being around Minor, a convicted

felon, would send him back to prison. He also testified that he lied to police because he

never thought Minor would implicate him as the shooter.

      {¶11}   Appellant was acquitted of attempted murder, but convicted of felonious

assault with the firearm specification and having a weapon under disability. He was

sentenced to eight years incarceration for felonious assault, three years incarceration

for the firearm specification, and five years incarceration for having a weapon under

disability. The five year sentence was to be served concurrently with the eight year

sentence, for an aggregate term of eleven years incarceration. Appellant assigns the

following errors on appeal:

      {¶12}   “I.    DEFENDANT-APPELLANT          WAS      PREJUDICED        BY     THE

INTRODUCTION         OF   UNRELIABLE       AND    INADMISSIBLE       DNA     EVIDENCE

CONTRARY TO OHIO LAW AND THE STATE AND FEDERAL CONSTITUTIONS.

      {¶13}   “II. DEFENDANT-APPELLANT WAS PREJUDICED BY THE DENIAL OF

HIS RIGHT TO CONFRONT HIS ACCUSER AND TO PRESENT A DEFENSE

CONTRARY TO OHIO LAW AND THE STATE AND FEDERAL CONSTITUTIONS.

      {¶14}   “III. DEFENDANT-APPELLANT WAS DENIED A FAIR TRIAL BY

PROSECUTORIAL MISCONDUCT CONTRARY TO OHIO LAW AND THE STATE

AND FEDERAL CONSTITUTIONS.

      {¶15}   “IV.   DEFENDANT-APPELLANT WAS PREJUDICED BY THE FAILURE

OF THE TRIAL COURT TO GIVE PROPER JURY INSTRUCTIONS, WHICH ERROR
Muskingum County, Case No. CT2013-0004                                                      5


FORECLOSED HIS DEFENSES OF ACCIDENT AND NECESSITY, AND BY THOSE

ATTRIBUTING TO HIM AN AFFIRMATIVE DEFENSE OF SELF-DEFENSE, WHICH

HE HAD NOT RAISED, CONTRARY TO OHIO LAW AND THE STATE AND FEDERAL

CONSTITUTIONS.

      {¶16}   “V.     DEFENDANT-APPELLANT          WAS   DENIED      THE     EFFECTIVE

ASSISTANCE OF COUNSEL CONTRARY TO THE STATE AND FEDERAL

CONSTITUTIONS.

      {¶17}   “VI.    DEFENDANT-APPELLANT WAS PREJUDICED WHEN HE WAS

SENTENCED TO A TERM OF 5 YEARS IMPRISONMENT FOR AN F-3 WEAPONS

UNDER DISABILITY (WUD) WHEN AN F-3 WUD CARRIES A MAXIMUM TERM OF

ONLY 36 MONTHS UNDER R.C. 2929.14(A)(3)(a-b) CONTRARY TO OHIO LAW AND

THE STATE AND FEDERAL CONSTITUTIONS.

      {¶18}   “VII.   DEFENDANT-APPELLANT WAS PREJUDICED BY CUMULATIVE

ERROR     CONTRARY        TO   OHIO    LAW     AND    THE    STATE     AND      FEDERAL

CONSTITUTIONS.”

                                              I.

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

admitting evidence that he could not be excluded as a contributor to the DNA found on

the gun. He argues that there “was no direct evidence from which to conclude that

appellant’s lack of exclusion was the result of anything more than his inclusion in a

world human population of 7 billion-plus who likewise could not be excluded.”

      {¶20}   Raymond Peoples, a forensic scientist in the DNA section of the Bureau of

Criminal Identification and Investigation, testified that DNA from the gun trigger showed
Muskingum County, Case No. CT2013-0004                                                       6


a mixture of three individuals, but the profile was not suitable for inclusionary purposes

and no conclusion could be made as to whether appellant contributed to the mixture.

He also testified that at times someone who is not suitable for inclusion might be

excluded, but in the instant case he could not exclude appellant from the mixture. He

testified similarly as to a DNA profile taken from elsewhere on the gun. Appellant did

not object to this testimony.

      {¶21}   Because appellant failed to object, we must find plain error in order to

reverse. To prevail under a plain error analysis, appellant bears the burden of

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

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

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

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

      {¶22}   Appellant has not demonstrated that the outcome of the trial would have

been different but for this testimony. The witness clearly stated that no conclusions

could be made regarding appellant as a possible contributor to the mixture of DNA on

the gun. Contra to appellant’s argument, the testimony did not create an inference that

appellant handled the weapon. Further, appellant admitted in his testimony that he

touched the weapon, as he was trying to get the gun away from Minor when it fired, and

three witnesses testified that they saw appellant holding the gun.

      {¶23}   The first assignment of error is overruled.
Muskingum County, Case No. CT2013-0004                                                          7


                                                II.

      {¶24}     In his second assignment of error, appellant argues that the court erred in

excluding a tape recorded statement of Minor in which he conceded appellant’s

accident defense.

      {¶25}     During Minor’s testimony, counsel for appellant asked him:

      {¶26}     “Q. That is more than one. Here’s what I’m asking you. Did you tell Mr.

Brown, and I quote, I know you didn’t do nothing, man?

      {¶27}     “A. I can’t recall.” Tr. 264.

      {¶28}     Counsel then requested a sidebar conference. At sidebar, he represented

to the court that he had a tape recording of a call in which Minor said, “I know you didn’t

do nothing, man.” The court found that Minor’s testimony that he didn’t recall making

the statement was not inconsistent with making the statement, and the tape was

inadmissible.

      {¶29}     The admission or exclusion of evidence lies within the sound discretion of

the trial court. State v. Sage , 31 Ohio St.3d 173, 510 N.E.2d 343 (1987). Crim. R.

52(A), governing harmless error, states that “[a]ny error, defect, irregularity, or variance

which does not affect substantial rights shall be disregarded.”

      {¶30}     In the instant case, exclusion of the tape-recorded statement was

harmless as it did not affect appellant’s substantial rights. Minor testified that when

talking to appellant on the telephone, he had agreed to “stick to the script” in an effort to

conceal his true intentions with regard to prosecution of the case.            The specific

statement which counsel represented to be on the tape was not materially different from
Muskingum County, Case No. CT2013-0004                                                          8


Minor’s prior testimony and appellant cannot demonstrate that its exclusion affected a

substantial right. Any error in exclusion of the tape was harmless.

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

                                                III.

         {¶32}   In his third assignment of error, appellant argues that the prosecutor

committed misconduct.

         {¶33}   The test for prosecutorial misconduct is whether the prosecutor's

comments and remarks were improper and if so, whether those comments and remarks

prejudicially affected the substantial rights of the accused. State v. Lott, 51 Ohio St.3d

160, 555 N.E.2d 293 (1990). In reviewing allegations of prosecutorial misconduct, it is

our duty to consider the complained of conduct in the context of the entire trial. Darden

v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986).

         {¶34}   Appellant first argues that the prosecutor crossed the line by presenting

inadmissible “reverse inference” DNA evidence as outlined in the first assignment of

error. For the reasons stated in the first assignment of error, appellant’s claim is without

merit.

         {¶35}   Appellant next argues that the prosecutor committed misconduct by

improperly questioning appellant on his failure to testify at the preliminary hearing and

by commenting on the same in closing argument.

         {¶36}   The United States Supreme Court has held that “the Fifth Amendment, in

its direct application to the Federal Government and in its bearing on the States by

reason of the Fourteenth Amendment, forbids either comment by the prosecution on the

accused’s silence or instructions by the court that silence is evidence of guilt.” Griffin v.
Muskingum County, Case No. CT2013-0004                                                        9

California, 380 U.S. 609, 615,85 S.C.t 1229, 14 L.E.2d 106 (1965).             Judicial or

prosecutorial commentary concerning the accused's Fifth Amendment privilege against

self-incrimination does not constitute a constitutional violation unless the comments are

intended to imply that the accused's silence is evidence of guilt. Lakeside v. Oregon,

435 U.S. 333, 338-39, 98 S.Ct. 1091, 1093, 55 L.Ed.2d 319 (1978).

      {¶37}    Appellant told police that he was not in Zanesville on the day of the

shooting. However, at trial he admitted he was in Zanesville but testified Minor pulled

the gun on him, and he shot Minor while trying to get the gun away from him. While

cross-examining appellant as to why he failed to take advantage of opportunities to

correct his statement to police prior to trial, the prosecutor asked appellant if he was in

attendance at his preliminary hearing on June 14th, and noted that several people

testified at this hearing. The prosecutor continued:

      {¶38}    “Q.     That would have been an opportunity to set the record straight,

wouldn’t it?

      {¶39}    “A. Yes, it would have.

      {¶40}    “Q. But you didn’t testify, did you?

      {¶41}    “A. Hold on. At that time –

      {¶42}    “MR. KAIDO: Objection. Your Honor, he doesn’t have to testify at the

preliminary hearing.

      {¶43}    “THE COURT:        He just asked him whether he did or didn’t. He can

answer that question.” Tr. 474.

      {¶44}    In closing argument, the prosecutor stated, “They would have you ignore

the fact that he lied about his knowledge and whereabouts when he was interviewed by
Muskingum County, Case No. CT2013-0004                                                          10


Detective Hill days later. They would have you ignore the fact that he didn’t testify at

the preliminary hearing where he could have told the story that he unloaded here

today.” Tr. 528.

      {¶45}   The prosecutor’s questions and comments were not intended to imply that

appellant’s silence was evidence of guilt. Appellant chose to talk to police and waive his

right to remain silent, telling police he was not in Zanesville at the time of the shooting.

At trial he admitted he lied to police and told a different story about the shooting. The

prosecutor’s comments were directed to the fact that appellant had several

opportunities prior to trial to admit he lied to police when he said he wasn’t in Zanesville,

yet he did not claim the shooting was an accident until the day of trial.

      {¶46}   Finally, appellant argues that the prosecution improperly insinuated during

closing that appellant failed to call a missing witness because that witness would not

have been helpful to appellant.

      {¶47}   The test regarding prosecutorial misconduct is whether the prosecutor's

remarks were improper, and, if so, whether they prejudicially affected substantial rights

of the defendant. State v. Smith, 87 Ohio St.3d 424, 442, 721 N.E.2d 93 (2000). In

reviewing the propriety of a prosecutor's closing argument, we review the argument in

its entirety to determine if the prosecutor's remarks were prejudicial. State v. Keenan, 66

Ohio St.3d 402, 410,613 N.E.2d 203 (1993). The touchstone of the analysis is the

fairness of the trial, not the culpability of the prosecutor.   Smith, supra, at 442, citing

Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940 (1982).

      {¶48}   In commenting that T did not testify at trial, the prosecutor stated:
Muskingum County, Case No. CT2013-0004                                                        11


      {¶49}   “Those are the witnesses that were on the scene, the only witnesses.

You’ve heard that T has flown the coop. Nobody knows where T is. I’m sure if the

defendant knew where he was and if he thought T would help him out, he would have

had him here.” Tr. 496. Appellant objected, and the court overruled the objection,

ruling that the prosecutor was permitted to make inferences. Tr. 497.

      {¶50}   The prosecutor’s comments do not rise to the level of misconduct. Just

prior to the comment, the prosecutor argued that all of the witnesses who were in the

house at the time of the shooting testified on behalf of the State. While the prosecutor

was speculating as to appellant’s ability to find and present T’s testimony on his behalf,

the comment was isolated and did not deny appellant a fair trial.

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

                                               IV.

      {¶52}   Appellant argues that the court erred in giving his requested instruction to

the jury on self-defense, and failing to give instructions on the defenses of accident and

necessity, which he did not request.

      {¶53}   In reviewing a claim on appeal that a jury instruction requested by the

defendant and given by the trial court was reversible error, under the “invited error

doctrine,” a party may not request a jury instruction and then later complain on appeal

that requested instruction was given.          Walker v. State, 5th Dist. Stark No.

2007CA00037, 2007-Ohio-5262, ¶51. Appellant invited any error in the court instructing

the jury on self-defense by requesting said instruction.

      {¶54}   Appellant next argues that the court erred in failing to instruct the jury on

accident and necessity. Appellant did not request such instructions. We therefore must
Muskingum County, Case No. CT2013-0004                                                         12


find plain error to reverse. To prevail under a plain error analysis, appellant bears the

burden of demonstrating that the outcome of the trial clearly would have been different

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

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

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

      {¶55}   In general, a trial court errs by failing to provide a jury instruction on the

defense of accident when the facts of a case warrant such an instruction. State v.

Smiley, 8th Dist. Cuyahoga App. No. 03853, 2010–Ohio–4349, ¶ 16. However, if trial

court's general charge was otherwise correct, it is doubtful that failing to give an

instruction on accident would ever satisfy the tests for plain error or ineffective

assistance of counsel because the defense of accident is not an excuse or justification

for the admitted act. Id.   The effect of an accident instruction is to simply remind the

jury that the defendant presented evidence to negate the requisite mental element. Id.

If the jury believed the defendant’s evidence regarding accident, it would have been

required to find the defendant not guilty regardless of the lack of an accident instruction.

Id.

      {¶56}   To convict appellant of felonious assault, the jury had to find that appellant

knowingly caused or attempted to cause physical harm to Minor by means of a deadly

weapon or dangerous ordnance. If the jury believed appellant’s testimony that Minor

pulled the gun on him and he was trying to protect himself by grabbing the gun from

Minor when it accidentally fired, they would have acquitted appellant of felonious

assault. Appellant has not demonstrated plain error in the failure to sua sponte instruct

the jury on accident.
Muskingum County, Case No. CT2013-0004                                                       13


      {¶57}   Appellant also argues that the court should have instructed the jury on the

defense of necessity to having a weapon under disability, as he had to possess the gun

to save his own life. Appellant has not demonstrated plain error. The jury did not find

that appellant acted in self-defense, nor did they believe his testimony that the gun went

off accidentally or they would not have found the requisite mental state for the felonious

assault conviction. Therefore, even if instructed on necessity, the jury would not have

found that appellant handled the firearm out of necessity to save his own life.

      {¶58}   The fourth assignment of error is overruled.

                                                V.

      {¶59}   Appellant next argues that counsel was ineffective for failing to object to

reverse inference DNA evidence (assignment of error one), failing to object to the

prosecutor’s improper comments on appellant’s failure to testify at the preliminary

hearing (assignment of error three), failing to request instructions on accident and

necessity rather than self-defense (assignment of error four), and failing to proffer the

tape-recorded call where Minor made the exculpatory statement, in the event we find in

the second assignment of error that appellant waived error by proffering the substance

of the statement rather than the actual tape.

      {¶60}   A properly licensed attorney is presumed competent. State v. Hamblin, 37

Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of

ineffective assistance of counsel, appellant must show counsel's performance fell below

an objective standard of reasonable representation and but for counsel’s error, the

result of the proceedings would have been different.         Strickland v. Washington, 466

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley , 42 Ohio St.3d 136,
Muskingum County, Case No. CT2013-0004                                                       14


538 N.E.2d 373 (1989). In other words, appellant must show that counsel’s conduct so

undermined the proper functioning of the adversarial process that the trial cannot be

relied upon as having produced a just result. Id.

      {¶61}   As to appellant’s first three claims of ineffective assistance of counsel,

appellant has not demonstrated that the outcome of the trial would have been different

for the reasons stated in assignments of error one, three, and four. As to his claim that

counsel should have proffered the tape recorded statement, we did not find in the

second assignment of error that he waived error by proffering the substance of the

statement rather than the tape, and this claim is therefore moot.

      {¶62}   The fifth assignment of error is overruled.

                                               VI.

      {¶63}   In his sixth assignment of error, appellant argues that the court erred in

sentencing him to five years incarceration for a felony three conviction of having a

weapon under a disability, as the maximum term is 36 months pursuant to R.C.

2929.14(A)(3)(a) and (b).     The State concedes this error.        R.C. 2929.14(A)(3)(a)

provides for a maximum term of five years incarceration for certain convictions of third

degree felonies; however, a conviction of 2923.13 is not among these offenses.

Accordingly, the maximum sentence to which appellant could be sentenced for violating

R.C. 2923.13 was 36 months pursuant to R.C. 2929.14(A)(3)(b).

      {¶64}   The sixth assignment of error is sustained.

                                               VII.

      {¶65}   In his final assignment of error, appellant argues that he was prejudiced by

cumulative error, as set forth in his preceding assignments of error.
Muskingum County, Case No. CT2013-0004                                                           15


      {¶66}   Although violations of the Rules of Evidence during trial may singularly not

rise to the level of prejudicial error, a conviction will be reversed where the cumulative

effect of the errors deprived the defendant of the constitutional right to a fair trial. State

v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987), ¶ 2 of the syllabus. The

DeMarco case involved numerous violations of the hearsay rule, which the Supreme

Court found cumulatively resulted in prejudicial error. Id. at 196–197, 509 N.E.2d 1256.

However, the doctrine is not applicable to cases where the court has not found multiple

instances of harmless error. State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623,

1995–Ohio–168.

      {¶67}   In the instant case, we have not found multiple instances of harmless

error. The doctrine of cumulative error therefore does not apply.
Muskingum County, Case No. CT2013-0004                                                      16


      {¶68}   The seventh assignment of error is overruled.       The judgment of the

Muskingum County Common Pleas Court is reversed solely as to the sentence of five

years incarceration for the conviction of R.C. 2923.13(A)(3). The judgment is affirmed

in all other respects, and this cause is remanded for resentencing. Costs are to be split

evenly between the parties.

By: Baldwin, J.

Gwin, P. J. and

Farmer, J. concur.



                                        HON. CRAIG R. BALDWIN



                                        HON. W. SCOTT GWIN



                                        HON. SHEILA G. FARMER




CRB/rad
[Cite as State v. Brown, 2013-Ohio-3608.]


                IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :
                                               :
        Plaintiff - Appellee                   :
                                               :
-vs-                                           :      JUDGMENT ENTRY
                                               :
RARECOLE L.E. BROWN                            :
                                               :
        Defendant - Appellant                  :      CASE NO. CT2013-0004


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

judgment of the Court of Common Pleas of Muskingum County, Ohio is affirmed in part,

reversed in part and remanded. Costs are to be split between the parties.




                                            HON. CRAIG R. BALDWIN



                                            HON. W. SCOTT GWIN



                                            HON. SHEILA G. FARMER
