[Cite as State v. Brown, 2023-Ohio-258.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
PREBLE COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2022-02-003
: OPINION
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:
LARRY E. BROWN II, :
Appellant. :
CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS
Case No. 15CR011706
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, and
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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 a
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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 DUE
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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 considered by the trial court when it denied Brown's motions for a
new trial and postconviction relief.
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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 the
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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
CA2012-02-008, 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 discovering the facts contained in the three medical reports.
"The 'unavoidably prevented' requirement in Crim.R. 33(B) mirrors the 'unavoidably
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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,
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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:
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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,
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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 were 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 were material to Brown's case, or would have raised a
reasonably probability that the proceeding would have turned out differently, is not persuasive.
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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 was 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 reports 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 raised 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 if
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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 those
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 to
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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 violations 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, 12th 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 No. 5:
{¶ 45} THIS ERROR WILL PROVE [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 in
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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 inconsistencies
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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 discussed
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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.
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