[Cite as State v. Brown , 2023

- Ohio

- 258.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

PREBLE COUNTY

STATE OF OHIO

,

Appell ee

,

- vs

-

LARRY E. BROWN II

,

Appell ant

. :

:

:

:

:

: CASE NO. CA 2 0 2 2

- 02

- 0 03

O P I N I O N

1/30/2023

CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS

Case No. 15CR 011706

Martin P. Votel, Preble County Prosecuting Attorney, and Kathryn M. West, Assistant

Prosecuting Attorney

, for appellee

.

Larry E. Brown II, pro se

.

S. POWELL

, J.

{¶ 1} Appellant, Larry Brown, appeals from the trial court ' s decision denying his

third petition for postconviction relief and his motion for leave to file a motion for a new trial.

{¶ 2} In 2015, Brown was indicted for two counts of gross sexual imposition, and

one count each of rape of a person less than 13 years of age, sexual battery, andPre ble CA2 0 22

- 02

- 003

- 2

- importuning. The charges stemmed from allegations made by B.H., who alleged that Brown

forced her to perform various sexual acts on him when she was 11 and 12 years old.

According to B.H., this sexual abuse occurred at a farm owned by a family friend when she

and Brown would be there working for the farm ' s owner. B.H. kept a journal, where she

recorded some of her thoughts about the abuse. Her mother found and read the journal.

B.H. told her mother and grandmother about the sexual abuse after it occurred.

{¶ 3} The case proceeded to a bench trial and the court found Brown guilty on all

counts. The court merged the rape count with the remainder of the charges and sentenced

Brown to a term of ten years to life in prison. Following his convictions, Brown moved for a

new trial

, which the trial court denied.

{¶ 4} In his direct appeal, Brown raised two assignments of error. First, that the

trial court erred in denying his motion for a new trial, and second, that Brown received

ineffective assistance of counsel. This court overruled both assignments of error and

affirmed

. State v. Brown

, 12th Dist. Preble No. CA2016

- 07

- 006, 2017

- Ohio

- 4231

.

{¶ 5} Brown then sought postconviction relief, which the trial court denied without

an evidentiary hearing. This court affirmed that decision and the Ohio Supreme Court

declined review. State v. Brown

, 12th Dist. Preble No. CA2017

- 09

- 010, 2018

- Ohio

- 3338

,

appeal not accepted

, State v. Brown

, 154 Ohio St.3d 1464, 2018

- Ohio

- 5209.

{¶ 6} Brown then filed a motion for a new trial and a successive petition for

postconviction relief. The trial court dismissed Brown ' s successive petition for

postconviction relief and denied his motion for a new trial. Brown appealed to this court,

raising 14 assignments of error. This court overruled all of those assignments and affirmed

the trial court ' s decision. State v. Brown

, 12th Dist. Preble No. CA2019

- 04

- 006, 2020

- Ohio

971.

{¶ 7} The instant matter concerns Brown ' s motion for leave to file a motion for aPre ble CA2 0 22

- 02

- 003

- 3

- new trial, a motion for a new trial, and his third petition for postconviction relief. The trial

court denied Brown ' s motion for leave to file a motion for a new trial and his motion for a

new trial without a hearing. The trial court also denied his petition for postconviction relief.

{¶ 8} Brown now appeals the trial court ' s decision, raising six assignments of error.

We address the first four assignments of error together.

{¶ 9} Assignment of Error No. 1:

{¶ 10} THE TRIAL COURT ERRED IN NOT HAVING AN EVIDENTIARY HEARING

AND WROTE THE DECISION OFF OF THE STATES [sic] FALSE AND MISLEADING

OPPOSITION BRIEF. INDICATED BY THE TRIAL COURT MAKING THE SAME

MISSTATEMENTS OF FACTS AND LAW. THIS VIOLATED THE APPELLANT ' S FIFTH,

SIXTH, AND FOURTEENTH AMENDMENTS AND WAS A DENIAL OF THE DUE

PROCESS.

{¶ 11} Assignment of Error No. 2:

{¶ 12} APPELLANT WAS PREJUDICED BY THE PROSECUTION WITHHOLDING

A SAMARITAN BEHAVIORAL HEALTH REPORT. THIS C.R.16(B)(4)(7), (E)(1)

VIOLATION UNDER BRADY

, PREVENTED APPELLANT FROM HAVING ALIBI

WITNESSES IN HIS FAVOR. THIS WAS DENIAL OF THE DUE PROCESS,

COMPULSORY PROCESS, CONFRONTATION CLAUSES, FAIR TRIAL, AND EQUAL

PROTECTIONS UNDER APPELLANT ' S FIFTH, SIXTH, AND FOURTEENTH

AMENDMENTS.

{¶ 13} Assignment of Error No

. 3:

{¶ 14} APPELLANT WAS PREJUDICED BY THE PROSECUTION WITHHOLDING

THE DAYTON CHILDREN ' S HOSPITAL REPORTS. THIS A [sic] C.R.16(B)(4)(5)(7),

(E)(1) VIOLATION UNDER BRADY

. THIS ERROR PROVES THE FALSENESS OF THE

NOTEBOOK, SHOWING ACTUAL INNOCENCE. THIS WAS DENIAL OF THE DUEPre ble CA2 0 22

- 02

- 003

- 4

- PROCESS, COMPULSORY PROCESS, CONFRONTATION CLAUSES, FAIR TRIAL,

AND EQUAL PROTECTIONS UNDER APPELLANT ' S FIFTH, SIXTH, AND FOURTEENTH

AMENDMENTS.

{¶ 15} Assignment of Error No

. 4:

{¶ 16} APPELLANT WAS PREJUDICED BY THE PROSECUTION WITHHOLDING

A PREBLE COUNTY CHILDREN ' S SERVICES REPORT. THIS WAS A PRIOR

STATEMENT OF [B.H.]

, AND THE APPELLANT. THIS A [sic] C.R.16(B)(1)(5)(7)

VIOLATION UNDER BRADY. THIS WAS DENIAL OF THE DUE PROCESS,

COMPULSORY PROCESS, CONFRONTATION CLAUSES, FAIR TRIAL, AND EQUAL

PROTECTIONS UNDER APPELLANT ' S FIFTH, SIXTH, AND FOURTEENTH

AMENDMENTS.

{¶ 17} In his first four assignments of error, Brown raises a series of cumulative,

repetitive, and circular claims. In essence, he argues that the state committed several

Brady violations because it failed to produce three reports

— a Samaritan Behavioral Health

report, a Dayton Children ' s Hospital report, and a report from the Preble County Children

Services Department. Brown contends that these reports are newly discovered evidence

of which he was made aware through the deposition testimony of B.H. and her mother for

a related civil case filed several years later. 1 Brown asserts that had he known of these

reports, his defense counsel could have cross

- examined B.H. so as to impeach her

testimony and overturn his conviction.

{¶ 18} In denying Brown ' s motion for a new trial, the trial court found that the three

reports were not Brady material and were not newly discovered information, as the

1

. In an entry, this court granted Brown ' s motion to supplement the record with six depositions taken in the

related civil case, [H.] v. Vosler , Preble Common Pleas No. 18CVO31518. This court found that the

depositions were before the trial court and consid ered by the trial court when it denied Brown ' s motions for a

new trial and postconviction relief.Pre ble CA2 0 22

- 02

- 003

- 5

- information in the reports would have been cumulative to the evidence presented at trial.

In denying Brown ' s successive postconviction relief petition, the trial court found that Brown

was not unavoidably prevented from discovering the information in these reports. The trial

court also concluded, with respect to both motions, that many of Brown ' s claims were barred

by res judicata.

A. STANDARD OF REVIEW

{¶ 19} " Crim.R. 33 motions for a new trial are not to be granted lightly. " State v.

Thorton

, 12th Dist. Clermont No. CA2012

- 09

- 063, 2013

- Ohio

- 2394, ¶ 21. The decision to

grant or deny a motion for a new trial pursuant to Crim.R. 33 rests within the sound

discretion of the trial court and will not be reversed absent an abuse of discretion. State v.

Litton

, 12th Dist. Preble No. CA2016

- 04

- 005, 2016

- Ohio

- 7913, ¶ 17. An abuse of discretion

means " a discretion exercised to an end or purpose not justified by, and clearly against

reason and evidence. " State v. Hancock

, 108 Ohio St.3d 57, 77 (2006). In other words, it

is " a view or action that no conscientious judge, acting intelligently, could honestly have

taken. " Id.

{¶ 20} The abuse of discretion standard is also applicable to a trial court ' s decision

to grant or deny a postconviction petition. State v. Watson

, 12th Dist. Butler No. CA 2016

-

08

- 159, 2017

- Ohio

- 1403, ¶ 14. As stated above, it requires that we find the trial court ' s

decision was " unreasonable, arbitrary or unconscionable. " State v. Perkins

, 12th Dist.

Clinton No. CA2005

- 01

- 002, 2005

- Ohio

- 6557, ¶ 8.

1. Motion for a New Trial

{¶ 21} A motion for a new trial based on newly discovered evidence must be filed

within 120 days after the rendering of a verdict or the decision of the court where a trial by

jury has been waived

. Crim.R. 33(B). When a defendant files his motion well outside thePre ble CA2 0 22

- 02

- 003

- 6

- 120

- day period, he is required to obtain leave of court to file a motion for a new trial. Id.

Here, Brown was sentenced on June 14, 2016, and he filed his motion 1,769 days later on

August 16, 2021

, which is well beyond the 120

- day limit

. As Brown ' s motion was untimely,

he was required to demonstrate by clear and convincing evidence that he was " unavoidably

prevented " from discovering the evidence within the 120 days

. Id. Clear and convincing

evidence is evidence " which will [produce] in the mind of the trier of facts a firm belief or

conviction as to the facts sought to be established

. " State v. Widmer

, 12th Dist. Warren

CA 2012

- 02

- 008

, 2013

- Ohio

- 62, ¶ 168.

2. Postconviction Relief Petition

{¶ 22} Under R.C. 2953.21(A)(2)(a)

- (b), a petition for postconviction relief must be

filed no later than 365 days after the date on which the trial transcript is filed in the court of

appeals in the direct appeal, or, if there is no direct appeal, 365 days after the expiration of

the time in which a direct appeal could have been filed.

{¶ 23} Ohio ' s statutory procedure allows the court to entertain an untimely

postconviction petition if the petitioner shows that either (1) he was unavoidably prevented

from discovery of the facts upon which he relied in his petition

, or (2) the United States

Supreme Court has recognized a new federal or state right that applies retroactively to

persons in the petitioner's situation and the petitioner asserts a claim based on that right. If

the petitioner can satisfy one of these conditions, he must also show by clear and convincing

evidence that, but for the constitutional error at trial, no reasonable trier of fact would have

found him guilty. R.C. 2953.23(A)(1)(a)

- (b); Watson

, 2017

- Ohio

- 1403 at ¶ 17.

{¶ 24} As this is Brown ' s third postconviction relief petition, filed well beyond the 365

-

day timeline, Brown ' s request for postconviction relief rests on the claim that Brown was

" unavoidably prevented " from discover ing the facts contained in the three medical reports.

" The ' unavoidably prevented ' requirement in Crim.R. 33(B) mirrors the ' unavoidablyPre ble CA2 0 22

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- 003

- 7

- prevented ' requirement in R.C. 2953.23(A)(1). " State v. Barnes

, 5th Dist. Muskingum No.

CT2017

- 0092, 2018

- Ohio

- 1585, ¶ 28. A party is " unavoidably prevented " from filing a

motion for a new trial " if the party had no knowledge of the existence of the ground

supporting the motion and could not have learned of that existence within the time

prescribed for filing the motion in the exercise of reasonable diligence. " Id. at ¶ 26.

{¶ 25} Thus, in order for Brown to obtain relief pursuant to Crim.R. 33(B) or R.C.

2953.23, he must satisfy the threshold requirement of showing that he had no knowledge

of the existence of the ground supporting the motion

— namely, the information contained in

the three reports

— and could not have learned of this information within the time prescribed

for filing.

B. ANALYSIS

{¶ 26} With respect to Brown ' s first, second, and third assignments of error, Brown

argues that had he had access to the medical reports, his defense counsel could have

prepared a more complete defense by showing that B.H. had bipolar disorder

, ADHD and

several mood disorders, that B.H. was " hallucinating, " that B.H. was a " pathological liar, "

and that B.H. had stopped taking her medications

, which may have created " a

predisposition for telling lies. " Brown argues that the state was obligated to produce these

three reports, and the state argues that the rule does not apply because " it did not have a

duty to provide [Brown] with documents that it was not going to use and had not seen itself. "

{¶ 27} Crim.R. 16(B) requires that the state turn over evidence " within the

possession of, or reasonably available to the state[.] " Crim.R. 16(B). " The suppression by

the prosecution of evidence favorable to an accused upon request violates due process

where the evidence is material to guilt or to punishment, irrespective of the good faith or

bad faith of the prosecution. " State v. Lawson

, 12th Dist. Clermont No. CA2013

- 12

- 093,Pre ble CA2 0 22

- 02

- 003

- 8

- 2014

- Ohio

- 3554, ¶ 51, quoting Brady v. Maryland

, 373 U.S. 83, 87, 83 S.Ct. 1194 (1963).

Evidence is " material " if there is a reasonable probability that the proceeding would have

turned out differently had the evidence been disclosed. State v. Stojetz

, 12th Dist. Madison

No. CA2009

- 06

- 013, 2010

- Ohio

- 2544, ¶ 12. This inquiry focuses not on whether the

defendant would more likely than not have received a different verdict with the evidence,

but " whether in its absence he received a fair trial, understood as a trial resulting in a verdict

worthy of confidence. " State v. Dillingham

, 12th Dist. Butler Nos. CA2012

- 02

- 037 and

CA2012

- 02

- 042, 2012

- Ohio

- 5841, ¶ 13.

{¶ 28} We find that the trial court did not abuse its discretion in denying Brown ' s

motion for a new trial and postconviction petition for several reasons. First, we agree with

the trial court that there is no evidence to suggest that the state ever had any of the reports,

and thus the state was not obligated to make them available to Brown. Moreover, we agree

with the trial court that the information contained in these reports was cumulative of the

evidence presented at trial. Under Brady

, these reports are not " material, " as there is no

reasonable probability that the outcome of the proceeding would have been different had

the records been made available.

{¶ 29} Second, Brown cannot satisfy the threshold requirement of unavoidable

prevention in Crim.R. 33(B) and R.C. 2953.23(A)(1)

. Brown argues that these reports would

have allowed him to present evidence to the court that B.H. was suffering from ADHD and

bipolar disorder

, and that his " defense would have prepared a complete defense by showing

bipolar and ADHD are the two main personality disorders that contribute to the development

of compulsive lying disorder. "

{¶ 30} The trial transcript, however, shows that Brown and his counsel were aware

of B.H. ' s medical diagnoses and her " compulsive lying. " In his opening statement to the

court, Brown ' s defense counsel stated:Pre ble CA2 0 22

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- 003

- 9

- You will learn that the alleged victim in this case has had mental

issues from the year 2009. She had been treated at Samaritan

behavioral as early as 2009. * * * She has been diagnosed with

ADD, attention deficit disorder; ADHD, attention deficit

hyperactivity disorder; and finally, bipolar disease. The Court

will see a document entitled parents ' questionnaire. This is a

questionnaire that emanates from the school counselor to the

parent of a child that is having difficulty at school in terms of

behavior. And the questionnaire, parents ' questionnaire, is filled

out by the child ' s parent. In this case the questionnaire for [B.H.]

was filled out by her mother [N.B.]. Of the 48 categories on the

parents ' questionnaire, Mrs. [B] had check marked 38 of the 48

as being very much of a problem for [B.H.]. One of those

categories, number 15 specifically, was tells lies or stories that

aren ' t true.

{¶ 31} Further, B.H. testified that she would frequently lie to people, and her mother

testified to the same. Dr. Vosler, B.H. ' s physician

, testified about B.H. ' s counseling and

therapy at trial. Vosler was asked if B.H. went to therapy and he responded, " Yes. " He

was then asked if the therapy took place " at Good Samaritan Behavioral " and he responded,

" Possibly. I think she might have gone to Children ' s as well. " Dr. Vosler was then asked if

B.H. was " referred to Children ' s of Cincinnati for a psychiatric assessment, " and he

responded, " That ' s what I was thinking of, yes. "

{¶ 32} Dr. Vosler also testified that he " remember[ed] looking through the [mental

health] records in preparation for this case, so I remember a specific reference from the

counseling concerning her diagnosis and they had placed oppositional defiant disorder on

that as well. " When asked what sort of referral he made for B.H., Dr. Vosler responded, " At

the time we tried medication to see if it would help. It did not seem to help. And then we

made referrals out to behavioral health. " Notably, Brown himself testified that he " took

[B.H.] to therapy myself. I drove her there at Samaritan North. "

{¶ 33} Brown ' s defense counsel also cross

- examined a forensic interviewer from

Dayton Children ' s. Counsel ' s questions were related to a video interview taken at Dayton

Children ' s after B.H. disclosed the abuse. In questioning the interviewer about that video,Pre ble CA2 0 22

- 02

- 003

- 10

- Brown ' s counsel stated that " [B.H.] was insistent [in the video] that she not have any

psychological or mental health counseling because she had a bad experience with a prior

counselor " before B.H. disclosed the abuse.

{¶ 34} Brown and his counsel w ere aware of B.H. ' s counseling and therapy at

Samaritan Health and Dayton Children ' s at the time of trial

. They were also aware that

records were generated based on that counseling. Thus, Brown was not unavoidably

prevented from discovering these medical reports, or the information contained therein. 2

{¶ 35} Further, as we discussed in one of Brown ' s previous appeals to this court, the

principles of Brady do not apply when testimony regarding the evidence is presented during

the trial. State v. Branham

, 12th Dist. Butler No. CA96

- 11

- 247, 1998 Ohio App. LEXIS

2358, *10 (1998) ( " [T]he principles of Brady only apply in situations where information

known to the prosecution, but unknown to the defense, is discovered after trial " ); State v.

Clarke

, 12th Dist. Butler No. CA2015

- 11

- 189, 2016

- Ohio

- 7187, ¶ 40 ( " Even if the evidence

is disclosed during the trial, there is no Brady violation " ). This is not a case where Brown

was completely unaware of B.H. ' s medical diagnoses, her prior counseling, or her

behavioral issues until after the trial. All of these issues were discussed by multiple

witnesses at the trial and Brown ' s defense counsel even referenced these issues in his

opening statement to the court.

{¶ 36} Even assuming for the sake of argument that Brady would apply, a due

process claim under Brady cannot be maintained in the absence of a showing of that the

government ' s action deprived the accused of evidence that was favorable and material

.

2

. We note that Brown ' s claims regarding B.H. ' s " hallucinations " were not discussed at trial. However, these

hallucinations were described by B.H. in her civil deposition as " auditory hallucinations " that occurred " mostly

at night. " B.H. stated that she was " hearing voices " that told her to take things from her mother . B.H. ' s

allegations of abuse by Brown were physical in nature and occurred multiple times during the day. Thus, the

argument that these nightly auditory hallucinations w ere material to Brown ' s case , or would have raised a

reasonably probability that the proceeding would have turned out differently, is not persuasive.Pre ble CA2 0 22

- 02

- 003

- 11

- State v. Carr

, 12th Dist. Clermont No. CA2004

- 01

- 006, 2005

- Ohio

- 417, ¶ 8. ( " In order to

establish a Brady violation, three elements must be demonstrated: first, that the prosecution

failed to disclose evidence upon request; second, that the evidence was favorable to the

defense; and third, that the evidence was material " ).

{¶ 37} After reviewing the civil depositions and the information regarding the medical

records contained in those depositions, we find that the information was neither favorable

nor material to Brown ' s defense

. See State v. Zinn

, 5th Dist. Stark No. 2007 CA 00090,

2008

- Ohio

- 558, ¶ 40 ( " [A]s there w as already testimony presented at trial that the drugs did

not belong to Appellant, there is no " reasonable probability " that the outcome of the trial

would have been different " ). Here, the trial court heard from multiple witnesses regarding

B.H. ' s behavior and diagnoses. There was also testimony from multiple witnesses that B.H.

attended therapy at different locations

, with Brown stating that he even drove B.H. to

therapy himself

. Thus, the information in the mental health report s provides only duplicative

information that would not have changed the mind of the trier of fact.

C. RES JUDICATA

{¶ 38} In addition to Brown ' s failure to demonstrate unavoidable prevention, and his

failure to demonstrate a Brady violation, we agree with the trial court that Brown ' s

arguments are barred by res judicata.

{¶ 39} Under the doctrine of res judicata, " a final judgment of conviction bars a

convicted defendant who was represented by counsel from raising and litigating in any

proceeding except an appeal from that judgment, any defense or any claimed lack of due

process that was raise d or could have been raised by the defendant at trial, which resulted

in that judgment of conviction, or on an appeal from that judgment. " (Emphasis sic.) State

v. Reynolds

, 79 Ohio St.3d 158, 161 (1997). However, res judicata will not bar the claim ifPre ble CA2 0 22

- 02

- 003

- 12

- the petitioner presents " competent, relevant, and material evidence outside the record that

was not in existence and available to the petitioner in time to support the direct appeal

. "

(Emphasis sic.) State v. Piescuik

, 12th Dist. Butler No. CA2013

- 01

- 011, 2013

- Ohio

- 3879,

¶ 18. Evidence outside the record must demonstrate that appellant could not have

appealed the constitutional claim based upon information in the original record and such

evidence must not have been in existence and available to the petitioner at the time of trial.

Id.

{¶ 40} As discussed above, issues surrounding the information contained in the

three medical reports could have been raised by Brown at trial. Irrespective of t hose

potential arguments

, any issues now raised regarding the information contained in these

reports is barred by res judicata, as Brown was aware at the time of trial that B.H. had

undergone prior counseling, and the specific facilities of Samaritan and Dayton Children ' s

came up more than once. Brown could have assigned this as error in his direct appeal or

his previous petitions for postconviction relief, but he did not do so, and he is barred from

doing so now.

{¶ 41} Additionally, Brown previously raised an issue regarding evidence of B.H. ' s

hallucinations. In a previous appeal, Brown ' s first assignment of error stated that " The trial

court erred in not holding an evidentiary hearing after the appellant showed he was

unavoidably prevented from the discovery of the fact that the alleged victim suffered from

hallucinations as well as a plethora of other related mental illnesses. " State v. Brown

, 12th

Dist. Preble No. CA2019

- 04

- 006, 2020

- Ohio

- 971, ¶ 7. Thus, the issue of B.H. ' s

hallucinations, as well as her other " mental illnesses, " is barred by res judicata.

{¶ 42} With respect to Brown ' s fourth assignment of error relating to the Preble

County Children ' s Services report, this exact issue was raised in the seventh assignment

of error in a previous appeal. In that assignment, Brown alleged that the state " failed toPre ble CA2 0 22

- 02

- 003

- 13

- disclose a CSD (Children ' s Services)/Law enforcement report. " State v. Brown

, 2020

- Ohio

971, ¶ 32. This court has previously held that, " [t]he doctrine of res judicata is applicable to

consecutive postconviction proceedings; therefore, an issue raised in a prior proceeding is

res judicata for the purpose of subsequent postconviction proceedings. " State v.

Blankenship

, 12th Dist. Butler Nos. CA97

- 03

- 062 and CA97

- 03

- 063, 1997 Ohio App. LEXIS

4985, *9 (Nov. 10, 1997)

. As Brown has previously raised the issue of a potential Brady

violation for this Children ' s Services report, Brown is barred from raising the issue again.

{¶ 43} This is Brown ' s fourth appearance before this court. There was nothing to

prevent Brown from raising any alleged Brady violation s pertaining to these medical reports

at either the time of trial or in any one of his many appeals to this court. " Res judicata bars

a petitioner from ‘re

- packaging ' evidence or issues that either were or could have been

raised in trial or on direct appeal. " (Emphasis added .) State v. Casey

, 12 th Dist. Clinton

No. CA2017

- 08

- 013, 2018

- Ohio

- 2084, ¶ 15

. While Brown may argue that he was unable

to raise these issues because he was not made aware of the medical reports until he

received the depositions from the civil case, the record shows that B.H. ' s counseling, as

well as the records generated from that counseling, were discussed at trial. As such,

Brown ' s first, second, third, and fourth assignments of error are overruled.

{¶ 44} Assignment of Error N o. 5:

{¶ 45} THIS ERROR WILL PR OVE [B.H.] PERJURED HERSELF SEVERAL TIMES

ABOUT THE MATERIAL FACTS SURROUNDING THE ALLEGED CRIMES. AND THE

NOTEBOOK IN THE CASE WAS FABRICATED. THIS WAS DENIAL OF THE DUE

PROCESS, COMPULSORY PROCESS, CONFRONTATION CLAUSES, FAIR TRIAL,

AND EQUAL PROTECTIONS UNDER APPELLANT ' S FIFTH, SIXTH, AND FOURTEENTH

AMENDMENTS.

{¶ 46} In his fifth assignment of error, Brown asserts that the deposition testimony inPre ble CA2 0 22

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- 14

- the civil case shows that B.H. perjured herself twelve times, entitling Brown to a new trial.

{¶ 47} These alleged perjuries relate to inconsistencies between B.H. ' s trial

testimony and her deposition testimony regarding (1) people present on the Vosler farm

when B.H. and Brown were both there, (2) the type of kissing that occurred between them,

(3) the exact date and location of the rape on the Vosler property, (4) a date B.H. wrote in

her notebook, (5) the date when B.H. was told about her mother ' s sexual abuse, (6) the

reason for B.H. ' s disclosure about the abuse, (7) a conversation between B.H. and Brown ' s

mother about dropping the case

, (8) a statement B.H. made about having a scholarship for

college, (9) B.H. ' s medical records from Dayton Children ' s, (10) the date when B.H. may

have started smoking marijuana, (11) B.H. ' s description of the cabin on the Vosler property,

and (12) what B.H. wrote in her notebook.

{¶ 48} After a review of the trial testimony and the civil depositions, we agree with

the trial court that the statements in the civil depositions are not material in light of the fact

that B.H. was 11 years old at the time of the abuse, that the trial occurred five years later,

and her civil deposition testimony was given three years after that. We agree that the

statements are minor inconsistencies that are to be expected with the amount of elapsed

time.

{¶ 49} Moreover

, the record indicates that Brown ' s defense counsel cross

- examined

B.H. about instances where she lied, and cross

- examined Dr. Vosler about B.H. ' s mental

health. Brown ' s counsel had " adequate opportunity to cross

- examine [ B.H. ] about [her]

inconsistent statements, and by doing so, his counsel properly put the issue of the credibility

of [ B.H. ] ' s testimony before the [court]

. " State v. Wade

, 2nd Dist. Clark No. 06

- CA

- 108,

2007

- Ohio

- 6611, ¶ 16. Even with the testimony from multiple witnesses, including B.H.,

that she frequently lied to people, the trial court found B.H. ' s testimony regarding the abuse

to be credible. Thus, the argument that the introduction of these minor inconsistenciesPre ble CA2 0 22

- 02

- 003

- 15

- would change the mind of the trier of fact is not well

- taken.

{¶ 50} Moreover, just as with Brown ' s first four assignments of error, the facts

surrounding these issues were either discussed at trial or could have been raised in one of

his many appeals to this court. Accordingly, Brown ' s fifth assignment of error is overruled.

{¶ 51} Assignment of Error No. 6:

{¶ 52} APPELLANT WAS PREJUDICED BY THE CUMULATIVE EFFECTS OF ALL

THE WITHHELD REPORTS AND THE PERJURY ' S [sic] TOLD BY [B.H] AND [B.H. ' S

MOTHER] AT TRIAL. THIS WAS A DENIAL OF THE DUE PROCESS CLAUSE,

COMPULSORY PROCESS CLAUSE, CONFRONTATION CLAUSE, FAIR TRIAL, AND

EQUAL PROTECTIONS UNDER APPELLANT ' S FIFTH, SIXTH, AND FOURTEENTH

AMENDMENTS.

{¶ 53} Brown argues that the withheld reports " cumulatively deprived " him of a fair

trial. Under the doctrine of cumulative error, a court " will reverse a conviction when the

cumulative effect of errors deprives a defendant of a fair trial even though each of the

instances of trial

- court error does not individually constitute cause for reversal. " State v.

Wilson

, 12th Dist. Warren No. CA2018

- 03

- 022, 2019

- Ohio

- 338, ¶ 25.

{¶ 54} However, as relevant here, the Ohio Supreme Court has stated that " in order

to consider whether ‘cumulative ' error is present, [the court] would first have to find that

multiple errors were committed in [the] case. " State v. Madrigal

, 87 Ohio St.3d 378, 398

(2000); State v. Kaufold

, 12th Dist

. Butler No. CA2019

- 09

- 148, 2020

- Ohio

- 3835, ¶ 63 ( " In

order for the cumulative error doctrine to apply, an appellate court must find that multiple

errors, none of which individually rose to the level of prejudicial error, actually occurred in

the trial court " ).

{¶ 55} As discussed more fully above, no such error occurred here. Therefore,

because this court has found no merit to any of Brown ' s assignments of error discussedPre ble CA2 0 22

- 02

- 003

- 16

- above, Brown cannot demonstrate cumulative error. State v. Hoop

, 12th Dist. Brown No.

CA2011

- 07

- 015, 2012

- Ohio

- 992, ¶ 59. Accordingly, finding the cumulative error doctrine

inapplicable to the instant case, Brown ' s sixth assignment of error is overruled.

D. CONCLUSION

{¶ 56} The trial court did not abuse its discretion when it denied Brown ' s motion for

a new trial and his successive postconviction relief petition. The trial court properly found

that the state did not commit a Brady violation regarding the three medical reports, as not

only were the reports not in possession of the state, but the information contained in the

reports was discussed at trial, and was not favorable or material to Brown ' s defense.

Further, Brown had every opportunity to raise the issue of these reports at trial or in one of

his previous appeals to this court, and he did not do so. In that same vein, the record shows

that he was not " unavoidably prevented " from discovering the information contained in the

reports. The introduction of the minor inconsistencies between B.H. ' s testimony at trial and

her deposition in the civil case would not change the mind of the trier of fact. Finding no

error, we affirm the decision of the trial court to deny Brown ' s motion and petition.

{¶ 57} Judgment affirmed.

M. POWELL

, P .J., and BYRNE

, J., concur.