State v. Brewer

[Cite as State v. Brewer, 2019-Ohio-2969.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, :
CASE NO. 2018-L-136
- vs - :

NATHAN BREWER, :

Defendant-Appellant. :

Criminal Appeal from the Willoughby Municipal Court, Case No. 2018 CRB 01440.

Judgment: Reversed and remanded.

J. Jeffrey Holland and DanaMarie Kristyna Pannella, Holland and Muirden, 1343
Sharon-Copley Road, P.O. Box 345, Sharon Center, OH 44274 (For Plaintiff-Appellee).

Christopher J. Boeman, P.O. Box 583, Willoughby, OH 44096 (For Defendant-
Appellant).

MATT LYNCH, J.

{¶1} On March 7, 2018, Humane Agent, Leanne Pike, filed a Complaint in

Willoughby Municipal Court against Nathan Brewer, charging him with two counts of

Cruelty against Companion Animals, a misdemeanor of the first degree in violation of

R.C. 959.131(B) (Count 1) and a misdemeanor of the second degree in violation of R.C.

959.131(D)(1) (Count 2).

{¶2} On May 30, 2018, Brewer was arraigned and entered a plea of not guilty.
 {¶3} Brewer was tried before a jury on October 23, 2018. The following

testimony was given on behalf of the prosecution:

{¶4} Lee Stitt, a case worker for Signature Health, visited a client, Amanda

Henry, at her home on 31507 Royalview Drive, Willowick, on March 12, 2018. Stitt met

with Henry and Brewer in the living room while their child was eating potato chips off a

table. A dog, Majestic, was sitting near Stitt. During the meeting, the dog took a chip

from the child’s hand. Brewer jumped up and punched the dog with a closed fist hard

enough so that it yelped. The dog cowered, and Brewer grabbed it by the collar or nape

of the neck. He dragged the dog to the back of the home. Although she could not see

the dog, she heard “violent movement” for thirty to forty-five seconds. Brewer was

swearing at the dog which was yelping and whining and crying like it was in pain.

Brewer returned to the living room. Stitt concluded the appointment early and contacted

the Lake County Humane Society.

{¶5} Leanne Pike, a Lake County Humane Agent, responded to Stitt’s call.

Pike noted that Brewer had some history of domestic violence and that there is a

correlation between domestic violence and animal cruelty. On March 28, Pike visited

the Willowick residence. Brewer answered the door. Pike explained that she had

received a complaint that someone was abusing a dog at the house. Brewer responded

that it was not true and that she must have the wrong address. Pike asked if Brewer

had a dog. Brewer did not answer. Pike asked if he was Nathan Brewer and he

replied, “bye,” and slammed the door in her face. Pike returned to her office and found

an angry voice mail from Brewer. The message was that some bitch had shown up at

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his house accusing him of abusing his dog and he demanded to know who had made

the complaint.

{¶6} A few days later, a woman, identified as having a “close relationship” with

Brewer’s mother, arrived at Pike’s office with concerns about his treatment of the dog

and reported that the dog had been injured on an earlier occasion. Pike then contacted

Brewer’s mother who confirmed the earlier injury.

{¶7} On April 10, Pike obtained a search warrant and went to the residence

accompanied by four police officers. Pike impounded the dog and secured it in a van.

Brewer tried to approach the van but was deflected by one of the officers. Pike then

entered the home to check on the welfare of other, reptilian animals kept at the home.

Brewer also reentered the home swearing, yelling, and calling her names until she

completed her investigation. The dog was examined but no injuries were discovered.

{¶8} The jury found Brewer guilty of both counts of Cruelty against Companion

Animals.

{¶9} On October 30, 2018, the municipal court imposed a $100 fine and 180

days in jail (165 suspended) for Count 1 and a $100 fine and 90 days in jail (25

suspended) for Count 2 in addition to 24 months of Community Control Sanctions.

{¶10} On November 29, 2018, Brewer filed a Notice of Appeal. On appeal, he

raises the following assignments of error:

{¶11} “[1.] The State’s comments during opening statement referencing Mr.

Brewer’s expected testimony violated Mr. Brewer’s Fifth Amendment right against self-

incrimination.”

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 {¶12} “[2.] Mr. Brewer was denied his Sixth Amendment right to effective

assistance of counsel when Defense Counsel did not object a single time after the State

repeatedly introduced inadmissible and prejudicial testimony against him.”

{¶13} In his first assignment of error, Brewer argues the prosecutor violated his

Fifth Amendment right against self-incrimination by “set[ting] up the expectation in the

jury’s mind that Mr. Brewer would be testifying,” thereby “negat[ing] the Defendant’s

constitutional right not to testify.” Appellant’s brief at 12.

{¶14} “Comment by the trial court or by the prosecutor upon the failure of an

accused to testify in a criminal proceeding against him violates the self-incrimination

clause of the Fifth Amendment made applicable to the states by the Fourteenth

Amendment.” State v. Lynn, 5 Ohio St.2d 106, 214 N.E.2d 226 (1966), paragraph one

of the syllabus. Such comments are considered as a type of prosecutorial misconduct.

See, e.g., State v. Vaughn, 11th Dist. Ashtabula No. 2018-A-0045, 2019-Ohio-268, ¶

37. The Ohio Supreme Court has described the relevant inquiry as “whether the

language used was manifestly intended or was of such character that the jury would

naturally and necessarily take it to be a comment on the failure of the accused to

testify.” (Citation omitted.) State v. Ferguson, 5 Ohio St.3d 160, 162-163, 450 N.E.2d

265 (1983); State v. Webb, 70 Ohio St.3d 325, 328-329, 638 N.E.2d 1023 (1994). The

standard of review is whether the prosecutor’s misconduct has denied the accused the

fundamental right to a fair trial. State v. Iacona, 93 Ohio St.3d 83, 104, 752 N.E.2d 937

(2001).

{¶15} Despite having knowledge that Brewer would not be testifying at trial, the

prosecutor stated as follows during opening argument:

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 We are saying under count number one, the first count, we are
saying that the defendant knowingly committed an act of cruelty,
unjustifiable, unnecessary causing pain. But, we expect the
defendant to say, you know what, I was just disciplining the dog.
That’s what it was, it was a discipline. And if I went too far, okay,
but I’m a great guy and I just maybe went a little too far. If that’s
what you think, the[n] we have a second charge that’s negligence,
which is a substantial lapse of due care. If you believe, if they
advance the story that the defendant was just engaging in some
kind of reasonable kind of training and discipline for his animal and
you think he went overboard a little bit, that’s negligence folks, if it
caused unnecessary or unjustifiable pain or suffering. That’s why
there are two charges.

{¶16} Brewer maintains that the prosecutor’s statement before the jury “to

expect Mr. Brewer to testify and explain his actions knowing that the Defendant would

not be testifying violated the Defendant’s constitutional right not to testify in the same

way that a comment in closing pointing out that the Defendant did not testify would be a

violation of Defendant’s constitutional right not to testify.” Appellant’s brief at 13. We

disagree.

{¶17} The prosecutor’s reference to what he expected Brewer “to say” rather

than what he expected the defense “to argue” was not manifestly intended to create the

impression that he would be testifying so that his subsequent failure to testify would be

impermissibly construed by the jury as evidence of his guilt. In context, the prosecutor

was merely explaining the difference between the two counts of the Complaint. Almost

immediately, the prosecutor clarified that the defense that Brewer was disciplining the

dog was a story that “they,” i.e. the defense, might advance as a justification for his

actions.

{¶18} In fact, this is the defense that counsel for Brewer advanced during his

opening statement:

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 So you’re going to hear then about a large, powerful Pitbull, about a
year old, and how this animal goes up to a two-year-old child with
curly brown hair and steals food from her [sic]. This is certainly not
appropriate behavior, not behavior that Nathan wanted to see
recurring over and over again. So he attempted to remedy the
situation.

{¶19} Also significant is the fact that the prosecutor’s comments took place

during opening, rather than closing, argument. No reference to Brewer’s failure to

testify was made in summation and no suggestion was made that the defense failed to

offer evidence in support of the theory that Brewer was disciplining the dog. The

prosecutor’s reference as to what he expected Brewer “to say” remained an isolated

comment made in the course of explaining the charges rather than in argument as to

what the evidence at trial proved or failed to prove.

{¶20} The first assignment of error is without merit.

{¶21} In the second assignment of error, Brewer argues that he received

constitutionally ineffective assistance of counsel in violation of the Sixth Amendment.

He asserts “the State (1) repeatedly asked leading questions and (2) presented

inadmissible hearsay testimony, (3) presented inadmissible opinion testimony, (4)

presented inadmissible testimony regarding prior bad acts, and (5) presented

inadmissible expert witness testimony, over and over, without [a single] objection by

Defense Counsel.” We agree.

{¶22} To reverse a conviction for ineffective assistance of counsel, the

defendant must prove “(1) that counsel’s performance fell below an objective standard

of reasonableness, and (2) that counsel’s deficient performance prejudiced the

defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding.”

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State v. Madrigal, 87 Ohio St.3d 378, 388-389, 721 N.E.2d 52 (2000), citing Strickland

v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

{¶23} In reaching the conclusion that trial counsel’s performance deprived

Brewer of a reliable or fundamentally fair trial proceeding, we have recourse to the

doctrine of cumulative error. “Although violations of the Rules of Evidence during trial,

singularly, may not rise to the level of prejudicial error, a conviction will be reversed

where the cumulative effect of the error deprives a defendant of the constitutional right

to a fair trial.” State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987),

paragraph two of the syllabus. This court has recognized that “[a]pplication of the

doctrine is not limited to violations of the Rules of Evidence.” State v. Burke, 11th Dist.

Trumbull Nos. 2018-T-0032 and 2018-T-0035, 2019-Ohio-1951, ¶ 141, citing State v.

Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶ 257. We offer no

opinion as to whether any of the specific instances of ineffective assistance discussed

below merits reversal of Brewer’s convictions. Rather, our holding rests on their

cumulative effect.

{¶24} Also significant to the issue of trial counsel’s performance is the fact that,

on the day of trial, counsel filed a Motion in Limine seeking to exclude evidence of

Brewer’s “criminal history” and “alleged other bad acts,” and, in particular, “[a]ny

reference to any vet visits not stemming from * * * the March 12, 2018 incident.” The

Motion was argued prior to the commencement of trial. The court refrained from making

definite rulings on counsel’s requests. The court acknowledged that, in the presentation

of the State’s case in-chief, the prosecutor was “limited to the date in question * * *

unless there is something in the course of the investigation that’s relevant to that

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particular [i.e., another] date.” The court emphasized, however, that “I can’t rule on it

until it starts coming in.” Again, in considering the admissibility of Brewer’s prior bad

acts, the court reiterated “I think I’m going to have to hear how it comes in, what exactly

is said before I can rule on it.” It is well-established that a ruling on a motion in limine

does not preserve the record for appeal and that it is necessary to object and/or proffer

as appropriate “when the issue is actually reached and the context is developed at trial.”

(Citation omitted.) State v. Grubb, 28 Ohio St.3d 199, 203, 503 N.E.2d 142 (1986).

Counsel for Brewer did not raise any objections at trial.

Leading Questions

{¶25} “Leading questions should not be used on the direct examination of a

witness except as may be necessary to develop the witness’ testimony.” Evid.R.

611(C). “A leading question is ‘one that suggests to the witness the answer desired by

the examiner.’” (Citation omitted.) State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-

5084, 854 N.E.2d 1038, ¶ 138; State v. D’Ambrosio, 67 Ohio St.3d 185, 190, 616

N.E.2d 909 (1993) (“[a] leading question ‘instructs [the] witness how to answer or puts

into his mouth words to be echoed back’”) (citation omitted). “However, the trial court

has discretion to allow leading questions on direct examination.” State v. Diar, 120 Ohio

St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 149.

{¶26} The case worker, Stitt, described the underlying events as follows:

I was speaking with Amanda, that was the first time meeting
Nathan, * * * and their son was eating chips off * * * the small table
in the living room * * * and the dog took the chip from the baby’s
hand. And Nathan * * * c[a]me over an punched the dog, brought
the dog to the back of the home and continued to beat the dog.
The dog was whimpering. * * * The dog was crying and Mr.
Brewer was swearing at the dog. There was a lot of violent
movement.

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{¶27} The prosecutor developed her testimony thus:

Prosecutor: Was it yelping?

Stitt: Yes.

Prosecutor: Crying?

Stitt: Yes.

Prosecutor: Whining?

Stitt: Yes.

Prosecutor: Did it sound like an animal in pain?

Stitt: Absolutely.

Prosecutor: Okay. Was there the sound of violent activity?

Stitt: Yes.

Prosecutor: Okay. Did Mr. Brewer return to the room?

Stitt: Yes.

Prosecutor: Okay. Did this go on for, this activity in the back
room, did it seem like it went on for a long time?

Stitt: It did. It was about thirty to forty-five seconds.

Prosecutor: Thirty to forty-five seconds. So actually, if I time it on
a watch, but that seems like an awful long time sitting here?

Stitt: Yes.

Prosecutor: Okay. Did Mr. Brewer come back in the room?

Stitt: Yes, he did.

Prosecutor: Was his face flush?

Stitt: Yeah. He immediately sat down and acted like
nothing happened. Like it was normal.

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 {¶28} The majority of the prosecutor’s questions constituted the proper

development of Stitt’s testimony. A few of them (“did it seem like it went on for a long

time?”; “was his face flush?”) were arguably leading inasmuch as they suggested the

desired answer. However, we cannot say, if defense counsel had objected, that it

would have been an abuse of the court’s discretion to overrule the objections and allow

the questions.

Hearsay Testimony

{¶29} “‘Hearsay’ is a statement, other than one made by the declarant while

testifying at trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Evid.R. 801(C). Although a trial court has discretion to determine whether a

statement constitutes hearsay and whether a statement should be admitted under a

hearsay exception, it is not proper for a court to allow the admission of hearsay qua

hearsay. State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 97

(“[o]rdinarily, we review a trial court’s hearsay rulings for an abuse of discretion”);

Evid.R. 802 (“[h]earsay is not admissible except as otherwise provided by the

Constitution of the United States, by the Constitution of the State of Ohio, by statute * *

*, by these rules, or by other rules prescribed by the Supreme Court of Ohio”).

{¶30} Brewer cites the following as examples of inadmissible hearsay, made

during the testimony of humane agent Pike describing her investigation of Stitt’s

complaint:

Pike: I eventually got ahold of Lee Stitt. There was a lot of
concern on her part and on her supervisor’s part of being identified
as a witness in this case. She was frightened of him. She was
frightened about whatever she knew about his past and what she
witnessed that day.

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 Prosecutor: Did she say that she was aware of his past and that’s
what made her frightened?

Pike: I think some of his past, yes. She said he’s a very,
very angry person.

{¶31} Pike also testified to statements made by an unidentified woman claiming

to be a friend of Brewer’s mother and by Brewer’s mother regarding a prior injury

suffered by the dog:

There was a woman who came into the Humane Society and
identified herself as a family friend to Mr. Brewer’s family and stated
that she had concerns about Nathan Brewer. She was concerned
about his behavior * * * [and] an injury that happened to the dog * *
*, about how the dog was injured. * * * She did give me Nathan’s
mom’s phone number. So I did then call * * * his mom, and I spoke
with her * * * and she told me a little bit more about that previous
injury that occurred to the dog the previous spring. She told me
she had paid for those vet visits. * * * There was more
recommended follow-up treatment that did not happen. * * * She
told me about what happened to the dog, the concerns about the
dog * * *. It was suspicious how the dog had the injuries that it did.
She talked a lot about how the baby * * * loved the dog and the dog
was very good with the baby and she had no concerns in that
realm. * * * And she told me a little bit about her son’s, her
concerns about Nathan’s behavior in the past and what she’s
observed.

{¶32} Pike also reported that the officers who accompanied her when the dog

was seized told her they were aware of Brewer’s anger issues.

{¶33} The State counters that Pike’s testimony as to what other persons told her

about Brewer was necessary “for the limited purpose of explaining the course of the

humane agent’s investigation, and to account for the 2-3 week delay between receiving

the complaint and the execution of the warrant[,] * * * otherwise it would appear that the

agent either neglected her duties to get the warrant in a timely manner, or she did not

11
believe that the reported conduct was serious enough to warrant prompt action.”

Appellee’s brief at 14-19.

{¶34} The State is correct “that extrajudicial statements made by an out-of-court

declarant are properly admissible to explain the actions of a witness to whom the

statement was directed.” State v. Thomas, 61 Ohio St.2d 223, 232, 400 N.E.2d 401

(1980). Thus, it could be argued that at least some of the foregoing1 did not constitute

hearsay inasmuch as the out-of-court statements regarding the dog’s earlier injury and

concerns about Brewer’s temperament and behavior were not admitted to prove the

truth of the matters asserted but to explain Pike’s investigation. However, “in order for

testimony offered to explain police conduct to be admissible as nonhearsay, the conduct

to be explained should be relevant” and “the probative value of statements must not be

substantially outweighed by the danger of unfair prejudice.” State v. Ricks, 136 Ohio

St.3d 356, 2013-Ohio-3712, 995 N.E.2d 1181, ¶ 27.

{¶35} In the present case, the relevance of the statements is doubtful and their

prejudicial effect certain. The actual evidence against Brewer was what Stitt witnessed

at the Willowick residence on March 12. The humane agent’s diligence in obtaining a

warrant and/or her estimation of the case worker’s credibility (as well as the fact of the

dog’s seizure) were scarcely relevant to the events of March 12. In the course of

addressing these non-issues, the State was allowed to introduce out-of-court

statements that the case worker and her supervisor were afraid of Brewer, the dog had

suffered prior injury under suspicious circumstances (which Brewer was neglectful

about treating), Brewer’s son loved the dog, and Brewer’s mother, family friends, and

1. Stitt and her supervisor’s fear of Brewer had nothing to do with obtaining the search warrant nor did
the belief that it was necessary to assign four police officers to protect Pike during its execution.

12
Willowick police officers all knew and had concerns about Brewer’s anger issues. The

failure of Brewer’s trial counsel to object to any of this, either as hearsay or on the

grounds of relevance/prejudice, despite his awareness (evidenced by the motion in

limine) “that the introduction of this evidence could confuse the jury as to the ultimate

issue in this case and distract from the March 12th incident,” casts doubt on the

fundamental fairness of the proceedings.

Opinion Testimony

{¶36} During the direct examination of Stitt, the prosecutor asked her if the dog

was a “loving dog” to which she responded, “yes.” Stitt was subsequently asked if she

thought “it was justified to do this [i.e., punch the dog]” to which she responded, “no.”

{¶37} A lay “witness’ testimony in the form of opinions or inferences is limited to

those opinions or inferences which are (1) rationally based on the perception of the

witness and (2) helpful to a clear understanding of the witness’ testimony of the

determination of a fact in issue.” Evid.R. 701. Such testimony “is not objectionable

solely because it embraces an ultimate issue to be decided by the trier of fact.” Evid.R.

704.

{¶38} We find nothing particularly objectionable regarding Stitt’s testimony as to

whether the dog was a loving dog or whether Brewer was justified in punching the dog.

The opinions were based on her perception of events and were helpful in explaining her

testimony regarding the proportionality of Brewer’s reaction to the dog’s conduct.

Cruelty against Companion Animals encompasses the issue of whether “unnecessary

or unjustifiable pain or suffering is caused” to the animal. R.C. 959.131(A)(2) and (B);

R.C. 1717.01(B).

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Prior Bad Acts

{¶39} “Evidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity therewith. It may, however,

be admissible for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.” Evid.R.

404(B); R.C. 2945.59 (“any acts of the defendant which tend to show his motive or

intent, the absence of mistake or accident on his part, or the defendant’s scheme, plan,

or system in doing the act in question may be proved * * * notwithstanding that such

proof may show or tend to show the commission of another crime by the defendant”).

{¶40} When considering the admissibility of other acts evidence for other

purposes, the trial court should consider “whether the other acts evidence is relevant to

making any fact that is of consequence to the determination of the action more or less

probable than it would be without the evidence”; whether the evidence “is presented to

prove the character of the accused in order to show activity in conformity therewith”; and

whether “the probative value of the other acts evidence is substantially outweighed by

the danger of unfair prejudice.” State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695,

983 N.E.2d 1278, ¶ 20.

{¶41} On redirect examination, Pike gave the following testimony:

Prosecutor: You were asked on cross-examination if the
defendant only faced criminal matters regarding the March 12th
incident. Do you remember that question?2

Pike: Yes.

2. The actual import of defense counsel’s question on cross-examination was whether any charges
against Brewer arose out of the execution of the search warrant on April 10. The scope of redirect
examination is generally limited to matters inquired into on cross-examination although the trial court, in
the exercise of its discretion, may allow inquiry into other matters. State v. Rucker, 2018-Ohio-1832, 113
N.E.3d 81, ¶ 59 (8th Dist.).

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 Prosecutor: Are you familiar with other criminal incidents
regarding this defendant?

Pike: I am familiar, yes.

Prosecutor: So he does have other criminal matters just not --
beyond this one, right?

Pike: Correct.

{¶42} The State maintains that this testimony was not admitted for the truth of

the matter asserted, but, as with the hearsay statement discussed above, was “properly

admitted as background for [Pike’s] investigation.” Appellee’s brief at 17. As such, it

was subject to objection on the same grounds as the hearsay testimony. It is of

doubtful relevance and creates the impression that animal cruelty may be the least of

Brewer’s criminal activity.

Expert Testimony

{¶43} “A witness may testify as an expert if all of the following apply: (A) The

witness’ testimony either relates to matters beyond the knowledge or experience

possessed by lay persons or dispels a misconception common among lay persons; (B)

The witness is qualified as an expert by specialized knowledge, skill, experience,

training, or education regarding the subject matter of the testimony; (C) The witness’

testimony is based on reliable scientific, technical, or other specialized information.”

Evid.R. 702. The admissibility of expert testimony is subject to the same considerations

regarding relevancy and unfair prejudice as is other evidence. State v. Williams, 4 Ohio

St.3d 53, 57-58, 446 N.E.2d 444 (1983); State v. Struble, 11th Dist. Lake No. 2016-L-

108, 2017-Ohio-9326, ¶ 32.

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 {¶44} During the course of her testimony, Pike offered arguably expert testimony

on the relation between domestic violence and animal cruelty:

Prosecutor: You have had the opportunity to investigate hundreds
of animal cruelty, neglect and abuse cases --

Pike: Yes.

Prosecutor: -- including ones with large numbers of animals?

Pike: Yes.

Prosecutor: Okay. Have you been trained in how animal, how to
recognize animal cruelty and abuse?

Pike: Yes.

Prosecutor: Are you aware of the connection between animal
cruelty and domestic violence and human cruelty?

Pike: Yes.

Prosecutor: What is that connection?

Pike: Other than that there is a connection in a home where
there is animal cruelty, as far as physical abuse, oftentimes it is
connected. Also, physical abuse and difficulties, those kinds of
things, there’s been studies done on it and there’s a common
correlation that has been found.

Prosecutor: So if you were investigating an allegation of
somebody who harmed an animal unnecessarily and unjustifiably,
would you want to look into that kind [of] background for the
individual to see if there’s been domestic violence-type situations?

Pike: Absolutely.

***

Prosecutor: What did you do next?

Pike: At that point the message was that Mr. Brewer was
known to be a very angry person. So I started to do a little digging
on my own, just to research, you know, the multiple courts, and I
did find some past, you know, past cases in this court.

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 Prosecutor: Without going into the facts of the past cases, did you
find something in your investigation that led you to believe, from the
court records or law enforcement investigation, that led you to be
concerned about domestic violence?

Pike: Yes.

Prosecutor: Okay. And did you use that as part of how you were
evaluating this case?

Pike: Sure.

Prosecutor: It was related to Nathan Brewer --

Pike: Yes.

Prosecutor: -- as a suspect in that situation?

Pike: Yes.

{¶45} The grounds on which this testimony could and should have been

objected to are several. The main points are summarized in Brewer’s appellate brief:

“Despite Ms. Pike not having been qualified as an expert witness, the State, without any

objection from Defense Counsel, asked Ms. Pike to testify regarding a correlation

between domestic violence and animal cruelty, and then used hearsay records of other

bad acts found by Ms. Pike to show that Mr. Brewer was ‘a very angry person’ who was

known to be suspected of domestic violence.” Appellant’s brief at 22. We agree that

the only real purpose (or at least effect) of introducing the vague and unsubstantiated

testimony of a “common correlation” between domestic violence and animal cruelty was

to introduce otherwise inadmissible evidence of prior domestic violence to establish

that, on March 12, Brewer acted in conformity with his character and prior conduct.

{¶46} The State counters that Brewer’s trial counsel was faced with a “difficult

fact pattern” and recognized that the “only hope was to allow that testimony to come

17
and go quickly,” without drawing unnecessary attention to it by objecting. Appellee’s

brief at 16. In some cases this might be a valid point, but not the present one. The

Ohio Supreme Court has recognized:

[E]xperienced trial counsel learn that objections to each potentially
objectionable event could actually act to their party’s detriment. * *
* In light of this, any single failure to object usually cannot be said
to have been error unless the evidence sought is so prejudicial * * *
that failure to object essentially defaults the case to the state.
Otherwise, defense counsel must so consistently fail to use
objections, despite numerous and clear reasons for doing so, that
counsel’s failure cannot reasonably have been said to have been
part of a trial strategy or tactical choice.

(Citation omitted.) State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d

1144, ¶ 140. Here, trial counsel’s failure to raise a single objection during the course of

the trial cannot be reconciled with reasonable trial strategy or tactical choice.

{¶47} The second assignment of error is with merit.

{¶48} For the foregoing reasons, Brewer’s convictions for Cruelty against

Companion Animals are reversed, and this matter is remanded for further proceedings

consistent with this opinion. Costs to be taxed against the appellee.

THOMAS R. WRIGHT, P.J.,

CYNTHIA WESTCOTT RICE, J.,

concur.

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