[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 

 Appellee 

 v. 

BROLIN D. PAYNE 

 Appellant 

C.A. No. 26655 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF SUMMIT, OHIO 

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 
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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. 
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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 raceneutral grounds for excusing the juror in anticipation of a Batson objection to the State’s use of 
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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 
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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 
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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 
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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-Ohio3785, ¶ 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) 
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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. 
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 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.