[Cite as State v. Brown, 2012-Ohio-416.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                     :

        Plaintiff-Appellee                        :            C.A. CASE NO.      24420

v.                                                :            T.C. NO.     10CR1459

ANTHONY L. BROWN                                  :            (Criminal appeal from
                                                                Common Pleas Court)
        Defendant-Appellant                 :

                                                  :

                                           ..........

                                           OPINION

                         Rendered on the    3rd       day of     February     , 2012.

                                           ..........

TIMOTHY J. COLE, Atty. Reg. No. 0084117, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

PETER GALYARDT, Atty. Reg. No. 0085439, 250 E. Broad Street, Suite 1400, Columbus,
Ohio 43215
      Attorney for Defendant-Appellant

                                           ..........

DONOVAN, J.

        {¶ 1} Defendant-appellant Anthony L. Brown appeals his conviction and sentence

for two counts of aggravated robbery, in violation of R.C. 2911.01(A)(1), both felonies of

the first degree.
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          {¶ 2} Brown filed a motion for leave to file a delayed appeal with this Court on

January 6, 2011. On January 28, 2011, we granted Brown’s motion, and he filed the instant

appeal.

                                                 I

          {¶ 3} The incident which forms the basis for the instant appeal occurred between

two and three p.m. on May 3, 2010, when Carrie Yount and Nacole DeBusk were robbed

while sunbathing on the back porch of Yount’s residence located at 640 Kenwood Avenue in

Dayton, Ohio. Yount testified that while DeBusk spoke to an unidentified white male who

remained at the bottom of the porch steps, three black males approached the porch. One of

the black males asked Yount and DeBusk if they had a cell phone that he could use. When

DeBusk denied his request, the black male pulled out a handgun and walked up the porch

steps towards the women. The armed male put the handgun up to Debusk’s head and

demanded money. The other two black males, one of whom was later identified as Brown,

remained standing at the bottom of the steps.

          {¶ 4} Yount testified that while the armed male kept the handgun pointed at

DeBusk’s head, Brown directed him to take the women’s cell phones. Brown also ordered

the gunman to “check [DeBusk’s] breasts” for any items hidden there. The gunman reached

down DeBusk’s shirt and groped her breasts. The gunman also attempted to take DeBusk’s

necklace, but was unable to break the clasp on the chain. As Brown continued to give

instructions from his position at the bottom of the stairs, the gunman ran inside Yount’s

residence through the back door. While the gunman was in the house, Yount testified that

Brown and the third suspect attempted to rob the white male who had been speaking to
                                                                                         3

DeBusk earlier. Yount testified that Brown and the other suspect began punching and

kicking the white male when he refused to hand over his property to them.

       {¶ 5} Yount further testified that while the robbery was taking place, a white

Cadillac drove up and briefly stopped behind Yount’s residence before quickly driving away.

 Yount testified that Brown yelled, “Let’s go, come on!” The gunman ran out of Yount’s

residence, and the three suspects ran across the street and entered an older silver-green

Pontiac Grand Am with some body damage and drove away. After the suspects left,

Debusk discovered that the gunman had stolen money and credit cards out of her purse when

he went into Yount’s residence during the robbery.

       {¶ 6} Yount and DeBusk ran to a neighbor’s residence and called the police in

order to report the robbery. The female victims, however, were not interviewed by the

police until May 6, 2010, when Detective William Elzholz and Officer Matthew Heiser

from the Dayton Police Department spoke to both women individually for the purpose of

showing them photo spreads in an effort to identify the perpetrators. The spreads were

shown to each woman individually at separate locations. Both women identified Brown as

the individual who stood at the bottom of the steps and gave instructions to the gunman

during the robbery. On the same date, after a brief chase, Brown was arrested while driving

a vehicle which purportedly matched the description of the car in which the three suspects

left the scene of the robbery.

       {¶ 7} Brown was subsequently indicted for two counts of aggravated robbery and

one count of failure to comply. Both aggravated robbery counts were accompanied by

firearm specifications. At his arraignment on June 24, 2010, Brown stood mute, and the
                                                                                            4

trial court entered a plea of not guilty on his behalf to all of the counts in the indictment.

Brown filed a motion to suppress the photo-spread identifications on July 7, 2010. After a

hearing held on July 30, 2010, the trial court overruled Brown’s motion to suppress, issuing

findings of fact and conclusions of law from the bench at the end of the hearing.

       {¶ 8} On August 23, 2010, Brown pled no contest to one count of failure to comply

with the signal of a police officer. After his no contest plea, Brown filed a motion in limine

requesting that the State be barred from any mention of Brown’s flight from the police

officers before his arrest on May 6, 2010. The trial court granted Brown’s motion. The

case then proceeded to trial on the two remaining aggravated robbery counts with the

accompanying firearm specifications. Brown was subsequently found guilty on both counts

of aggravated robbery, but the jury was unable to reach a verdict regarding the firearm

specifications. The trial court sentenced Brown to an aggregate term of eleven years in

prison: to wit, nine years for each count of aggravated robbery to be served concurrently to

one another, but consecutive to two years for the single count of failure to comply.

       {¶ 9} It is from this judgment which Brown now appeals.

                                                  II

       {¶ 10} Because they are interrelated for the purposes of our analysis, Brown’s first,

second, and third assignments of error will be discussed as follows:

       {¶ 11} “THE TRIAL COURT VIOLATED ANTHONY BROWN’S DUE

PROCESS RIGHTS AND ABUSED ITS DISCRETION WHEN IT DENIED MR.

BROWN’S REQUEST FOR A MISTRIAL BASED UPON WITNESS TESTIMONY OF A

PREJUDICIAL PRIOR BAD ACT.”
                                                                                         5

       {¶ 12} “THE TRIAL COURT VIOLATED ANTHONY BROWN’S DUE

PROCESS RIGHTS AND COMMITTED PLAIN ERROR WHEN IT FAILED TO

DECLARE A MISTRIAL DUE TO IRREPARABLE, PREJUDICIAL STATEMENTS

UNRELATED TO THE CRIMES FOR WHICH HE WAS ON TRIAL.”

       {¶ 13} “ANTHONY BROWN WAS DEPRIVED OF HIS CONSTITUTIONAL

RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.”

       {¶ 14} Upon review, we have located several instances of trial testimony which are

problematic insofar as they are prejudicial, in some instances severely, to Brown and his

ability to receive a fair trial. Provided below are the prejudicial examples of testimony

adduced during trial:

       1) Objectionable Testimony of Officer M. Heiser

       {¶ 15} “The State: All right. You said you knew how Det. Elzholz developed the

photo spread?

       {¶ 16} “Officer Heiser: Yes.

       {¶ 17} “Q: Okay. And how was that?

       {¶ 18} “A: There was a previous robbery.”

       {¶ 19} Brown’s defense counsel objected to Officer Heiser’s statement regarding a

previous robbery. Defense counsel also moved for a new trial. The trial court sustained

the objection to the testimony and ordered the response stricken from the record. The trial

court, however, denied defense counsel’s motion for a new trial. On appeal, Brown argues

that the comment was extremely prejudicial because it linked him to a previous robbery and

was inadmissible as a prior bad act under Evid. R. 404(B). Brown asserts that Officer
                                                                                             6

Heiser’s testimony improperly established that he had a propensity to commit the crimes for

which he was presently charged.

       {¶ 20} A mistrial should not be ordered merely because of some error or irregularity

at trial. State v. Dennis, 10th Dist. No. 08AP-369, 2008-Ohio-6125, 2008 WL 5049749, ¶ 23.

 Mistrials need to be declared only when the ends of justice so require, and a fair trial is no

longer possible. State v. Garner (1995), 74 Ohio St.3d 49, 59. The decision whether to

grant a mistrial lies within the trial court's sound discretion. Id. “‘Abuse of discretion’ has

been defined as an attitude that is unreasonable, arbitrary, or unconscionable. Huffman v.

Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87. It is to be expected that most instances of

abuse of discretion will result in decisions that are simply unreasonable, rather than

decisions that are unconscionable or arbitrary.

       {¶ 21} “A decision is unreasonable if there is no sound reasoning process that would

support that decision. It is not enough that the reviewing court, were it deciding the issue de

novo, would not have found that reasoning process to be persuasive, perhaps in view of

countervailing reasoning processes that would support a contrary result.”               AAAA

Enterprises, Inc. v. River Place Community Urban Redevelopment Corp. (1990), 50 Ohio

St.3d 157, 161.

       {¶ 22} Normally, in determining whether the trial court properly exercised its

discretion, reviewing courts look to whether (1) “there [was] a ‘manifest necessity’ or a

‘high degree’ of necessity for ordering a mistrial, or (2) ‘the ends of public justice would

otherwise be defeated.’” State v. Widner (1981), 68 Ohio St.2d 188, 189-190, 429 N.E.2d

1065, citing Arizona v. Washington (1978), 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717. A
                                                                                             7

“manifest necessity” for a mistrial does not mean that a mistrial was absolutely necessary or

that there was no other alternative. Arizona v. Washington, 434 U.S. 511. In order to

exercise “sound discretion” in determining that a mistrial is necessary, the trial judge should

allow the defense and prosecution to state their positions on the issue, consider their

competing interests, and explore some reasonable alternatives before declaring a mistrial. Id.

at 514-516.

       2) Objectionable Testimony of Carrie Yount

       {¶ 23} “The State: And when you went to your neighbor [immediately after the

robbery], were you upset?

       {¶ 24} “Yount: Yeah, we were upset. And my friend had urine all over her, I mean,

she was hysterical. So we were just kind of pretty much calm her down [sic].

       {¶ 25} “Q: Were you emotional as well?

       {¶ 26} “A: I mean, yeah. I wasn’t too much. I was pretty much like, what just

happened? I have to live in this house with my kids, what just happened? I was pretty

much – that was pretty much my thing.

       {¶ 27} “Q: Were you in shock?

       {¶ 28} “A: Yeah, I was pretty much like this – you know, karma, like how did this

happen to me?

       {¶ 29} “Q: Are you still scared?

       {¶ 30} “A: Well, I’m scared because the family members of Mr. Brown have sent

death notes to my house –

       {¶ 31} “Defense Counsel: Objection.
                                                                                             8

       {¶ 32} “The Court: Sustained. Disregard that response.”

       {¶ 33} The Sixth Amendment to the U.S. Constitution guarantees that “the accused

shall enjoy the right to a *** trial, by an impartial jury *** (and) be confronted with the

witnesses before him ***.” Parker v. Gladden (1966), 385 U.S. 363, 87 S.Ct. 468, 17

L.Ed.2d 420. “The evidence developed against a defendant shall come from the witness

stand in a public courtroom where there is full judicial protection of the defendant’s right of

confrontation, of cross-examination, and of counsel.” Turner v. State of Louisiana (1965),

379 U.S. 466, 472-473, 85 S.Ct. 546, 550, 13 L.Ed.2d 424. “The entire thrust of rules of

evidence and the other protections attendant upon the modern trial is to keep extraneous

influences out of the courtroom.” Id.

       {¶ 34} “Error in the admission or exclusion of evidence in a criminal trial must be

considered prejudicial unless the court can declare, beyond a reasonable doubt, that the error

was harmless, and unless there is no reasonable probability that the evidence, or the

exclusion of evidence, may have contributed to the accused’s conviction.” State v. Bayless

(1976), 48 Ohio St.2d 73, 106, 357 N.E.2d 1035, vacated on other grounds, Bayless v. Ohio

(1978), 438 U.S. 911, 98 S.Ct. 3135, 57 L.Ed.2d 1155. The state bears the burden of

demonstrating harmless error. State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802

N.E.2d 643, ¶ 15.

       {¶ 35} Although, defense counsel’s objection was sustained, and the court directed

the jury to disregard Yount’s response, defense counsel did not move for a mistrial. This

exchange occurred on the first day of the trial, as Yount was the first witness to testify on

behalf of the State.
                                                                                              9

       {¶ 36} Initially, we note that a jury will normally be presumed to follow an

instruction to disregard inadmissible evidence inadvertently presented to it, unless there is an

overwhelming probability that the jury would be unable to follow the court’s instructions

and a strong likelihood that the effect would be devastating to the defendant. Greer v. Miller

(1987), 483 U.S. 356, 107 S.Ct. 3102, 97 L.Ed.2d 618. Yount’s statement regarding the

alleged death threats from Brown’s family was clearly prejudicial, wholly irrelevant, and

unsubstantiated on this record.     Brown argues that after Yount was allowed to testify

regarding the alleged death threats, a fair trial was no longer possible, and a reasonable

probability existed that Yount’s comment was sufficiently detrimental to overcome any

confidence in the outcome of the jury’s verdict. Further, had a mistrial been requested,

Brown asserts that a reasonable probability exists that the result of the trial would have been

different, to wit: the mistrial would have been granted, and Brown would have received a

new trial.

       {¶ 37} Simply put, Yount’s statement so early in the proceedings vilified Brown and

was highly prejudicial. The trial judge’s instruction to the jurors was insufficient as a

matter of law to cure the prejudicial effect of Yount’s statement. “We will not blindly

assume that a jury is able to follow a *** court’s instruction to ignore the elephant in the

deliberation room.” U.S. v. Morena (C.A.3, 2008), 547 F.3d 191, 197. The State introduced

the prejudicial material by a question that was itself improper

       3) Testimony of Officer Susan Benge

       {¶ 38} “The State: Did you have any other contact with Ms. Carrie Yount after that?

After you – when she came into the police station?
                                                                                         10

         {¶ 39} “Officer Benge: No, sir.

         {¶ 40} “Q: Okay. Was Mr. Brown taken into custody with regarding a traffic stop

[sic]?

         {¶ 41} “A: It wasn’t a traffic stop. He was – there was aggravated robbery warrant

out for him at that time and he had fled from other officers.”

         {¶ 42} Although Officer Benge’s statement clearly violated the trial court’s ruling

regarding the liminal motion barring the State from mentioning the circumstances under

which Brown was apprehended on May 6, 2010, defense counsel did not object nor did he

request a mistrial given the State’s line of questioning and Officer Benge’s answer.

         {¶ 43} “We review the alleged instances of ineffective assistance of trial counsel

under the two prong analysis set forth in Strickland v. Washington (1984), 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674, and adopted by the Supreme Court of Ohio in State v. Bradley

(1989), 42 Ohio St.3d 136, * * * . Pursuant to those cases, trial counsel is entitled to a

strong presumption that his or her conduct falls within the wide range of reasonable

assistance. Strickland, 466 U.S. at 688. To reverse a conviction based on ineffective

assistance of counsel, it must be demonstrated that trial counsel’s conduct fell below an

objective standard of reasonableness and that his errors were serious enough to create a

reasonable probability that, but for the errors, the result of the trial would have been

different. Id. Hindsight is not permitted to distort the assessment of what was reasonable

in light of counsel’s perspective at the time, and a debatable decision concerning trial

strategy cannot form the basis of a finding of ineffective assistance of counsel.” (Internal

citation omitted). State v. Mitchell, 2d Dist. Montgomery No. 21957, 2008-Ohio-493, ¶ 31.
                                                                                             11

In light of the foregoing, defense counsel’s failure to object to Officer Benge’s statement

was certainly deficient. It was also deficient for defense counsel to fail to request a mistrial

after Yount stated that she had received death threats from Brown’s family.

         {¶ 44} Viewed together, the errors made by defense counsel, as well as the improper

statements made by Officers Heiser and Benge and Carrie Yount necessitated that the trial

court declare a mistrial. The cumulative effect of the improper admissions and deficient

performance of defense counsel undermines any confidence in the outcome and rendered it

manifestly obvious that a fair trial was no longer possible. Accordingly, the “ends of justice

required a mistrial,” and the trial court erred when it failed to declare one.

         {¶ 45} Finally, we note that the instant case does not present a situation where the

defendant was convicted by overwhelming evidence. There was no physical evidence, the

complainants did not file a report with the police until two days after the crime, and there is

no indication that physical descriptions of the assailants were ever provided to police (other

than “one was shorter than the other”). Significantly, the only independent witness, a

neighbor, indicated that the complainants told her that they were robbed by two men, not

three.   The State’s case against Brown hinged upon the credibility of the eyewitness

testimony of Yount and DeBusk. Significantly, although a Telfaire instruction was not

necessarily required, we note that there is no justification on this record not to have

requested and received one as well. U.S. v. Telfaire (C.A.D.C. 1972), 469 F.2d 552.

                                                     III

         {¶ 46} Brown’s fourth and final assignment of error is as follows:

         {¶ 47} “THE TRIAL COURT ERRED BY IMPOSING COURT COSTS
                                                                                      12

WITHOUT NOTIFYING ANTHONY BROWN THAT FAILURE TO PAY THOSE

COSTS MAY RESULT IN THE COURT’S ORDERING HIM TO PERFORM

COMMUNITY SERVICE.”

       {¶ 48} In light of disposition with respect to Brown’s first, second, and third

assignments of error, his fourth assignment is rendered moot.

       {¶ 49} Accordingly, Brown’s conviction is reversed and vacated, and this matter is

remanded for proceedings consistent with this opinion.

                                        ..........

GRADY, P.J. and HALL, J., concur.

Copies mailed to:

Timothy J. Cole
Peter Galyardt
Hon. Mary Katherine Huffman
