[Cite as State v. Brown, 2012-Ohio-1848.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                           :

        Plaintiff-Appellee                              :            C.A. CASE NO.    24541

v.                                                      :            T.C. NO.    10CR2005

DAMIEN D. BROWN                                         :            (Criminal appeal from
                                                                     Common Pleas Court)
        Defendant-Appellant                  :

                                                        :

                                            ..........

                                            OPINION

                         Rendered on the         27th       day of       April    , 2012.

                                            ..........

KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

J. ALLEN WILMES, Atty. Reg. No. 0012093, 4428 N. Dixie Drive, Dayton, Ohio 45414
      Attorney for Defendant-Appellant

                                            ..........

FROELICH, J.

        {¶ 1}      Damien Brown was found guilty by a jury of two counts of murder and two

counts of felonious assault, each with a firearm specification, and having a weapon while

under disability (with a prior offense of violence). The first four counts were merged, as
                                                                                            2

were the firearm specifications. Brown was sentenced to fifteen years to life in prison for

murder, to three years of actual incarceration on the firearm specification, and to five years

for having a weapon under disability, to be served consecutively. Brown appeals from his

conviction.

        {¶ 2}     On June 25, 2010, Marquita Brown (“Marquita”) was shot in the head at her

apartment. At trial, it was undisputed that Brown was present when Marquita was shot, but

the circumstances surrounding the shooting were in dispute.

        {¶ 3}     The State presented the following evidence at trial:

        {¶ 4}     At 2:12 a.m. on June 25, 2010, Marquita’s five-year-old son called 911 from

their home in Dayton and reported that his mother had been shot by Brown. Brown was

Marquita’s boyfriend and had fled the apartment after the shooting.            Marquita was

pronounced dead at the scene, and the gun was found next to her body. The body was

located in the master bedroom on the second floor of the home. A shoebox of broken

picture frames and photographs was spilled at the bottom of the stairs, but there were no

other signs of a struggle.

       {¶ 5}       Forensic evidence established that Marquita had been shot once in the

temple from a distance of 2 to 18 inches and that the bullet had traveled in a downward

trajectory; forensic evidence also established that five pounds of pressure on the trigger was

required to fire the gun when it was cocked. Marquita did not have any other injuries or any

defensive wounds. A .22 caliber revolver with one spent cartridge and five live cartridges

was found next to the body.

       {¶ 6}      Brown’s mother testified that he had been carrying a handgun the previous
                                                                                           3

day and that he was planning to go to Marquita’s house to eat the night of June 24. Around

2:30 a.m. on June 25, Brown called his mother for a ride.

        {¶ 7}    Brown’s cousin, Terry Jamison, testified that she received a call from

Brown’s sister around 2:30 a.m. on June 25; the sister was crying and upset. Jamison then

spoke with Brown’s mother, who arranged for Jamison to pick up Brown near Third Street

and Grosvenor. (A detective testified that this intersection was approximately two miles

from Marquita’s apartment).       After picking up Brown, Jamison dropped him off on

Cincinnati Street, but she did not see where he went from here. Brown was arrested during

the morning of June 25 at an apartment in Harrison Township.

        {¶ 8}    The State presented testimony from Marquita’s sister that she had seen

Brown “chok[e]” Marquita in the spring of 2010 at Marquita’s apartment. The sister also

identified Marquita’s and Brown’s voices on a voicemail message in which Brown threatened

to burn down Marquita’s apartment. Two Dayton police officers testified that they had been

called to Marquita’s apartment approximately two weeks before the shooting on a report of

domestic violence, that they saw evidence of destruction at the apartment, that Marquita was

upset and reported that Brown had threatened to burn down her apartment.

        {¶ 9}    Brown testified in his own defense. He stated that he had been “seeing”

Marquita for three years and that they had lived together “all the time” with some breaks. He

admitted to being present at the shooting, but claimed that the gun had fired accidentally.

According to Brown, he initially placed his gun under a mattress in the bedroom, but

Marquita retrieved it and pointed it at him when she became upset with him. She cocked the

gun, but eventually handed it back to Brown. While Brown was trying to uncock the gun, he
                                                                                            4

made a comment that upset Marquita, and she attempted to grab the gun from him. Brown

claims that the gun fired accidentally during this struggle, and that he fled the scene because

he was “shocked and scared.”

       {¶ 10}    Brown was indicted on two counts of murder (deadly weapon and serious

physical harm) and two counts of felonious assault (deadly weapon and serious physical

harm), each with a firearm specification, and one count of having a weapon under disability.

He was tried by a jury. After jury deliberations began, one of the jurors was replaced with an

alternate, and deliberations began anew. The jury returned guilty verdicts on all counts.

The trial court merged the convictions as described above and sentenced Brown to an

aggregate term of twenty-three years to life of imprisonment.

       {¶ 11}    Brown raises four assignments of error on appeal.

       {¶ 12}    Brown’s first assignment of error states:

       COLLECTIVE COMMENTS BY THE PROSECUTOR DURING VOIR

       DIRE, TESTIMONY, AND CLOSING ARGUMENT REPRESENTED

       MISCONDUCT AND SERVED TO DENY APPELLANT DUE PROCESS.

       {¶ 13}    Brown claims that the prosecutor engaged in misconduct by making “snide

and improper comments,” expressing her personal beliefs to the jury, questioning him in an

“inappropriate and harassing” manner, and relying on facts not in evidence during closing

argument.

       {¶ 14}    In reviewing claims of prosecutorial misconduct, the test is whether the

remarks were improper and, if so, whether those comments prejudicially affected the

substantial rights of the defendant. State v. Jones, 90 Ohio St.3d 403, 420, 739 N.E.2d 300
                                                                                              5

(2000). “The touchstone of analysis ‘is the fairness of the trial, not the culpability of the

prosecutor.’” Id., quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct.940, 71 L.Ed.2d 78

(1982). Where it is clear beyond a reasonable doubt that the jury would have found the

defendant guilty, even absent the alleged misconduct, the defendant has not been prejudiced,

and his conviction will not be reversed. See State v. Underwood, 2d Dist. Montgomery No.

24186, 2011-Ohio-5418, ¶ 21. We review allegations of prosecutorial misconduct in the

context of the entire trial.       State v. Stevenson, 2d Dist. Greene No. 2007-CA-51,

2008-Ohio-2900, ¶ 42, citing Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91

L.Ed.2d 144 (1986).

       {¶ 15}      There was no objection to the alleged instances of prosecutorial misconduct;

therefore, Brown has waived all but plain error. State v. Bryan, 101 Ohio St.3d 272,

2004-Ohio-971, 804 N.E.2d 433, ¶ 175; State v. Ballew, 76 Ohio St.3d 244, 254, 667 N.E.2d

369 (1996). The plain error rule is to be invoked only under exceptional circumstances in

order to avoid a manifest miscarriage of justice. State v. Long, 53 Ohio St.2d 91, 95, 372

N.E.2d 804 (1978). Plain error does not occur unless, but for the error, the outcome of the

trial clearly would have been different. Id. at 97; Crim.R. 52(B).

       Voir dire

       {¶ 16}      Brown’s objection to the prosecutor’s conduct during voir dire is reflected in

the following passage:

       PROSECUTOR:            Let’s talk about something else.        Sympathy.      The

       Defendant gets to stay in the courtroom throughout the entire trial. The

       victim doesn’t get that opportunity. So, you’re going to be looking at him
                                                                                              6

          every day. Okay? And you may even form an opinion about how he looks

          there. I don’t know. But the point is, you’re going to have to look at him

          every day.

                   Anybody here think that any sympathy whatsoever could creep into

          this trial? And, quite frankly, that’s true even for the victim. There is no

          place for sympathy in this case, whether it’s for the victim or the Defendant.

          Anybody have a problem with that?

          {¶ 17}    One prospective juror responded to this question. The prospective juror

had previously disclosed that she had been abused by her “extremely violent” husband, but

had stayed with him for eight years because she thought she “could fix him.”        Although her

response to the prosecutor at this particular point in voir dire was “indiscernible,” the

prosecutor asked if the juror’s response was for the “same reason” that had been discussed

earlier. We can glean no additional insight into this interaction from the record, and we note

that this prospective juror was not seated. Based on the record before us, we have no basis

to conclude that the prosecutor’s questions about sympathy for Brown or about “hav[ing] to

look at him” during the trial caused any prejudice to Brown.

          Comment on the victim’s rights under the law

          {¶ 18}    Brown contends that the prosecutor acted improperly by commenting that

the victim “gets as much protection under the law as any of you would.” (Emphasis in

brief.)

          {¶ 19}    It will be helpful to our discussion to view this comment in context:

          PROSECUTOR: [Prosecutor referred to previously addressed “abusive
                                                                                           7

       relationship and how you feel about * * * a woman in that situation.”] * * *

       [I]s there anybody here collectively or individually who have [sic] a problem

       with the notion that all women are protected equally? All women are protected

       equally regardless of what you think they might bring on themselves by their

       own actions. If a woman chooses to stay with her abuser, for any number of

       reasons, or, quite frankly, reconcile with them, maybe they were put out but

       they reconciled, which I’m sure you’re familiar with in that cycle of violence.

       * * * Are you going to hold that against her and say, you know, “You got what

       you deserved?[”]

       PROSPECTIVE JURORS: Huh-uh.

       PROSECUTOR: Okay, And that’s all we’re looking for. She gets as much

       protection under the law as any of you would.         Can we agree to that?

       Anybody think they have a problem with that? * * *

       {¶ 20}    In our view, the prosecutor did not act improperly in asking the jurors

whether they agreed that the victim was protected under the law, even if she returned to an

abusive relationship. The reference to the victim’s having as much protection “as any of

you” arguably suggested to jurors that they place themselves in the position of the victim.

However, such a “golden rule” comment is not per se prejudicial; rather the test is whether it

prejudicially affected the substantial rights of the defendant.     State v. Ross, 2d Dist.

Montgomery No. 22958, 2010-Ohio-843, ¶ 126. We cannot say that it did. Moreover,

Brown did not object to the question; even if we were to assume, for the sake of argument,

that the question were improper, there is certainly no basis to conclude that the question
                                                                                               8

caused a “manifest miscarriage of justice” requiring reversal of the conviction for plain error.

 Underwood, 2d Dist. Montgomery No. 24186, 2011-Ohio-5418, ¶ 21.

        Manner of questioning the Defendant

        {¶ 21}    Brown     also     contends   that   the   prosecutor   harassed   him   during

cross-examination by “continuously prefac[ing] her questions with ‘You want the jury to

believe...’” or a similar preface.

        {¶ 22}    Prosecutors have wide latitude in cross-examining witnesses, subject to the

trial court’s discretion. State v. Garfield, 34 Ohio App.3d 300, 303, 578 N.E.2d 568 (11th

Dist.1986).

        {¶ 23}    A trial is an adversarial process, and the trial court did not abuse its

discretion in allowing the prosecutor to express some degree of skepticism about Brown’s

version of events. Defense counsel did not object to the questions. Moreover, our review

of the record indicates that the questions about which Brown complains highlighted

inconsistencies in his account or were addressed to fairly minor issues, such as how pictures

ended up on the floor. We discern no error, plain or otherwise, with respect to this aspect of

the prosecutor’s cross-examination of Brown.

        Reliance on facts not in evidence during closing

        {¶ 24}    Finally, Brown contends that the prosecutor argued facts not in evidence

during closing argument. In particular, Brown objects to the following statement: “[Brown

is] the only person who told you Marquell [Marquita’s son] didn’t see it. But you know

what, Marquell saw enough. Maybe we will never be able to know how much Marquell

saw. But he put it together. He put it together. And that’s what makes it so reliable.”
                                                                                                9

          {¶ 25}   Marquell was not called by either side and did not testify at trial, but his 911

call was played, without objection, for the jury. In that call, he stated: “Damien Brown has

shot my momma.”

          {¶ 26}   Both prosecutors and defense attorneys are given wide latitude during

closing arguments to address what the evidence has shown and what reasonable inferences

may be drawn from that evidence. State v. Black, 181 Ohio App.3d 821, 2009-Ohio-1629,

911 N.E.2d 309, ¶ 33 (2d Dist.), citing State v. Lott, 51 Ohio St.3d 160, 165, 555 N.E.2d 293

(1990).

          {¶ 27}   Although no evidence was presented that Marquell witnessed the shooting,

the prosecutor urged the jury to take Marquell’s perception of what had happened into

account. In other words, the prosecutor urged the jury to make an inference that Marquell

knew what had happened in the apartment, without presenting direct evidence that Marquell

had seen the shooting. The jury was undoubtedly aware of the uncertainty surrounding

Marquell’s account, and it was free to draw inferences from his statements to the 911

operator. Even in Brown’s version, he was holding the gun when it fired, albeit accidentally.

 Moreover, there is little likelihood that the outcome of the trial would have been different

absent the prosecutor’s statements, particularly when those statements are considered in the

context of all the State’s evidence and the prosecutor’s entire closing argument. State v.

Stevens, 24 Ohio St.2d 76, 82, 263 N.E.2d 773 (1970). No plain error occurred during

closing argument that undermines our confidence in the jury’s verdict.

          {¶ 28}   Having found no instances of prosecutorial conduct that amounted to plain

error, the first assignment of error is overruled.
                                                                                            10

        {¶ 29}    Brown’s second assignment of error states:

        THE TRIAL COURT ABUSED ITS DISCRETION IN MISAPPLYING

        OHIO RULE OF EVIDENCE 404 AND ADMITTING TESTIMONY MORE

        PREJUDICIAL THAN PROBATIVE.

        {¶ 30}    Brown contends that the testimony of Margene Robinson, an expert on

domestic violence, and other testimony about alleged prior instances of domestic violence

should not have been allowed by the trial court because it was “highly prejudicial” and “of

little probative value.”

        {¶ 31}    The decision whether to admit evidence is left to the sound discretion of the

trial court, and a reviewing court will not reverse that decision absent an abuse of discretion.

State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987), paragraph two of the syllabus. An

abuse of discretion implies an arbitrary, unreasonable, or unconscionable attitude on the part

of the trial court. State v. Adams, 62 Ohio St.2d 151, 404 N.E.2d 144 (1980).

        {¶ 32}    Evid.R. 404(B) provides: “Evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show that he acted 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.”   Relevant evidence is admissible unless its probative value is substantially

outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the

jury. Evid.R. 402; Evid.R. 403(A).

        {¶ 33}    The victim’s sister, Kimberly Brown, testified about an incident in the

spring of 2010, in which she had seen Brown “chok[e]” Marquita at Marquita’s house by
                                                                                             11

holding his hand to her throat and pushing her against a wall. After Kimberly intervened,

Brown called Kimberly and Marquita “project bitches” and threatened to come back with his

“chopper.”    (A detective testified that “chopper” is slang for a gun.)         Kimberly also

identified Brown’s and Marquita’s voices on a voicemail message left on Marquita’s cell

phone on June 13, 2010, in which Brown had threatened to set fire to Marquita’s apartment.



       {¶ 34}    Additionally, two Dayton police officers testified that they had responded to

a “threat call” from Marquita’s apartment on June 13, 2010, less than two weeks before her

death. The officers testified that, on that occasion, the victim was very upset and her clothes

were “partially stretched, kind of torn.” They also testified that her television was face-down

in the kitchen, her stereo had been smashed, framed pictures had been thrown to the floor,

and the victim stated that her boyfriend, Brown, had threatened to set the apartment on fire.

       {¶ 35}    Brown testified that the shooting was an accident. The trial court could

have reasonably concluded that the State’s evidence of prior incidents of domestic violence

and threats made by Brown toward the victim were offered to show his intent, plan, or

absence of mistake or accident in killing Marquita, rather than to prejudice the jury against

him by proof of prior bad acts. Moreover, the trial court cautioned the jury, both during the

trial and in its jury instructions, that this evidence was being received for “a limited purpose”

and could not be “consider[ed] * * * to prove the character of the Defendant in order to show

that he acted in conformity with that character.”        The court further instructed that the

limited purpose for which the evidence of other acts could be considered was “for the

purpose of deciding whether it proves the absence of accident, the Defendants’ motive,
                                                                                           12

opportunity or intent * * *.” Keeping in mind its careful instructions to the jury, the trial

court did not abuse its discretion in admitting this evidence.

       {¶ 36}    Brown also argues that the testimony of Michelle Knight that she had filed a

domestic violence charge against Brown years earlier was “a pure attack on his character.”

Knight’s testimony was introduced, along with a copy of a termination entry (Ex. 71) and the

testimony of a detective, to establish Brown’s 2003 felony conviction on two counts of

domestic violence. Establishing the prior conviction was necessary to support the charge of

having a weapon under disability. Knight did not testify about the nature of the incidents

underlying the 2003 offenses, but she did testify about the length of her relationship with

Brown, her young age at the time, and the fact that she had pressed charges against him.

       {¶ 37}    We share Brown’s concern about the use of Knight’s testimony to establish

his prior conviction, when other evidence had been presented to establish that fact. The

State introduced the detective’s testimony that Brown had not been allowed to carry a gun at

the time of the offense because of his prior felony domestic violence conviction, and the

detective identified the judgment entry related to those offenses. The detective also stated

that she had compared the date of birth and social security number of the defendant in the

prior case with Brown’s and found them to match. As such, Knight’s testimony was not

necessary to establish the existence of the prior conviction. While we do not generally

question a party’s decision to call two witnesses when one would do, in this situation, there

was the danger that the personalization of another complainant could create sympathy in the

jury apart from the fact of a prior conviction. (For example, Knight, who testified that she

was a teenager when she dated Brown, was considerably younger than Marquita.) However,
                                                                                            13

because Knight’s testimony about the prior incidents was very limited, Brown did not object

to it, and the court gave the appropriate instruction, we conclude that the trial court’s

admission of this testimony was not plain error.

       {¶ 38}    Finally, Brown contends that the testimony of Robinson, a former Dayton

police officer who supervised the domestic violence unit, was improper. Brown did not

object to Robinson’s qualifications, only the relevance and prejudice of her testimony. In

response to a State’s motion in limine to declare Robinson an expert witness, Brown also

argued that the State should not be permitted to “offer Margene Robinson to explain why the

victim[‘]s actions or lack thereof should not be held against [her]” while “restrict[ing] the

defense ability to inquire or reference any specific acts of conduct of the victim before the

date in question.”

       {¶ 39}    Robinson testified as an expert regarding common misconceptions about

domestic violence. Her testimony included various perceived or actual reasons why a victim

of domestic violence may not be able to escape her situation. Robinson also testified about

the three stages in the cycle of domestic violence. She did not testify about Brown’s

relationship with the victim, and the State’s evidence did not illustrate that the victim’s

actions or her relationship with Brown fit this pattern.

       {¶ 40}    Evid.R. 702 states: “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’
                                                                                             14

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

“In determining the admissibility of an expert witness’s testimony, a court must consider

whether that witness will aid the trier of fact in search of the truth.” State v. Dyson, 2d Dist.

Champaign No. 2000CA2, 2000 WL 1597952 (Oct. 27, 2000). Relevant evidence is not

admissible if its probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or of misleading the jury. Evid.R. 403(A); State v. Thomas, 2d Dist.

Montgomery No. 19435, 2003-Ohio-5746, ¶ 18. The determination concerning the

admissibility of expert testimony is a matter committed to the sound discretion of the trial

court. Id.

       {¶ 41}    Brown claims that Robinson’s testimony was not relevant because her

expertise was in domestic violence and, since he was not charged with domestic violence, her

testimony confused the issues. The argument frames the issue too narrowly; Brown, after

all, was charged with killing someone with whom he had lived “all the time,” thus coming

within the definition of “person living as a spouse” in the domestic violence statute. R.C.

2919.25.

       {¶ 42}    However, we are troubled that Robinson’s testimony did not directly

correspond with any other evidence presented in this case, i.e., no explicit evidence was

presented that Marquita felt trapped in her relationship with Brown or that their relationship

had fit the cycle of domestic violence. On the other hand, the evidence did establish that

Marquita’s relationship with Brown was an abusive one, which, coupled with Robinson’s

testimony, could have helped the jury to understand why Marquita continued to see Brown

after the prior incidents, including on the night of the shooting. Thus, it may have weighed
                                                                                             15

in favor of the State’s theory that Brown was still violent despite Marquita’s continued

relationship with him. In hindsight, this is a close call and it may have been better had that

testimony not been admitted. However, we find no reversible error in the trial court’s

decision to allow Robinson to testify.

       {¶ 43}    The second assignment of error is overruled.

       {¶ 44}    Brown’s third assignment of error states:

       THE TRIAL COURT ABUSED ITS DISCRETION IN EXCUSING A

       JUROR, LIKELY FAVORABLE TO APPELLANT, IN MEDIAS RES OF

       DELIBERATION WITHOUT A MANIFEST NECESSITY TO DO SO.

       {¶ 45}    Brown claims that the trial court’s decision to discharge a juror after

deliberations had begun was “contrary to law” and denied him his right to a trial by jury.

       {¶ 46}    A trial judge is empowered to exercise “sound discretion to remove a juror

and replace him with an alternate juror whenever facts are presented which convince the trial

judge that the juror’s ability to perform his duty is impaired.” State v. Hopkins, 27 Ohio

App.3d 196, 198, 500 N.E.2d 323 (11th Dist.1985), citing United States v. Spiegle, 604 F.2d

961, 967 (5th Cir.,1979); State v. Sikola, 5th Dist. Richland No. 06CA72, 2008-Ohio-843, ¶

39. Put differently, the court has authority to replace jurors with alternates when the jurors

“become or are found to be unable or disqualified to perform their duties.” Crim.R. 24(F);

see also R.C. 2945.29. Absent a record showing that the court abused that discretion which

resulted in prejudice to the defense, the regularity of the proceedings is presumed. Beach v.

Sweeney, 167 Ohio St. 477, 150 N.E.2d 42 (1958). See also State v. Shields, 15 Ohio

App.3d 112, 472 N.E.2d 1110 (8th Dist.1984).
                                                                                             16

        {¶ 47}    On the afternoon of the third day of trial, the court instructed the jury and

the the jury began its deliberations. Later that afternoon, the jury rang the bell asking for the

bailiff, and the bailiff found that one of the jurors (“Juror 11”) was “crying and upset” and

stated that she did not want to continue deliberating. The judge discussed with counsel

possible ways of addressing this situation, including asking Juror 11 to “go forward in

deliberations” but adding a second question when the jury was polled to assure that each

juror’s verdict was voluntary, seating an alternate juror and having the jury begin

deliberations from the beginning, and asking Juror 11 to reflect overnight on her willingness

to continue. They agreed that the judge would talk with the juror in chambers, outside the

presence of counsel. (Counsel was excluded based on the judge’s concern that the juror

might reveal how the jury was leaning in its deliberations.) Defense counsel did not object

to this course of action.

        {¶ 48}    The judge talked with Juror 11 in chambers, on the record. The judge then

accurately described the conversation to the attorneys as follows:

        I spoke with [Juror 11] and she’s very upset. She’s very tearful. And she

        does not want to go back into the jury room to deliberate. And so in light of

        that I told her what I would do is we would just discharge her as a member of

        our jury. * * * [S]he’s not being very communicative. And part of that I

        think is because every time she starts to talk, she starts crying. So she’s very

        emotional, very upset. Took her awhile to decide what it was that she wanted

        to do. In part concerned about not wanting to feel that she was abandoning

        her obligations or abandoning the folks that she has become friends with as
                                                                                           17

       members of the jury. But fundamentally, she’s at the point where she says

       that she just can’t do it. She didn’t realize when she became a juror just how

       she would be impacted by the process and now that the moment of reckoning

       is here, she just is a mess about it and is emotionally unable to continue.

       {¶ 49}     After the discussion with Juror 11, the judge expressed her intention to

discharge Juror 11 “[w]ith counsel’s permission” and to replace her with an alternate.

Again, defense counsel did not object to this resolution of the issue. Because it was after

5:00, it was snowing, and ice was expected, the trial court indicated that deliberations with

the alternate juror would begin the next morning.

       {¶ 50}     One alternate juror remained at the end of the trial. When the jury began its

deliberations, the alternate juror was permitted to leave but, as required by Crim.R. 24(G)(1),

the court instructed the alternate that he should “not discuss the case nor tell anybody how

[he] would have voted” until he was informed that the jury had returned its verdict. The

court also asked him to abide by the “code of silence” that is imposed on jurors until he was

discharged.     The court’s discussion with the alternate juror, when he was recalled, is not

contained in the record; we presume that he had complied with the court’s instructions.

       {¶ 51}     The jury reached a verdict the following day, after more than two hours of

deliberations with the newly-seated juror.

       {¶ 52}     R.C. 2945.29 states:

       If, before the conclusion of the trial, a juror becomes sick, or for other reason

       is unable to perform his duty, the court may order him to be discharged. In

       that case, if alternate jurors have been selected, one of them shall be
                                                                                          18

       designated to take the place of the juror so discharged. * * *

When a juror is replaced by an alternate after deliberations have begun, the trial court “must

instruct the jury to begin its deliberations anew.” Crim.R. 24(G)(1). The trial court gave

this instruction when Juror 11 was replaced with the alternate.

       {¶ 53}     The trial court fully complied with the legal requirements for replacing a

juror after deliberations had begun, and counsel did not object at any point to the court’s

handling of this issue. Moreover, Brown’s assertion that Juror 11 was “likely favorable” to

him is wholly speculative, and he has not argued that he was prejudiced in any way by the

alternate juror’s participation. The trial court acted within its discretion in handling the

matter as it did. We find no support for Brown’s claims that the court acted “contrary to

law” or denied him his right to a trial by jury.

       {¶ 54}     The third assignment of error is overruled.

       {¶ 55}     Brown’s fourth assignment of error states:

       THE      TRIAL     COURT       COMMITTED        PREJUDICIAL      ERROR      BY

       ENTERING A VERDICT HEREIN WHICH WAS AGAINST THE

       MANIFEST WEIGHT OF THE EVIDENCE.

       {¶ 56}     Brown claims that his conviction was against the manifest weight of the

evidence.

       {¶ 57} “[A] weight of the evidence argument challenges the believability of the

evidence and asks which of the competing inferences suggested by the evidence is more

believable or persuasive.”         State v. Wilson, 2d Dist. Montgomery No. 22581,

2009-Ohio-525, ¶ 12. When evaluating whether a conviction is contrary to the manifest
                                                                                            19

weight of the evidence, the appellate court must review the entire record, weigh the evidence

and all reasonable inferences, consider witness credibility, and determine whether, in

resolving conflicts in the evidence, the trier of fact “clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.”

State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983); State v. Elmore, 111 Ohio

St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, ¶ 44.

       {¶ 58}    Because the trier of fact sees and hears the witnesses at trial, we must defer

to the factfinder’s decisions whether, and to what extent, to credit the testimony of particular

witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug.

22, 1997). However, we may determine which of several competing inferences suggested by

the evidence should be preferred. Id.

       {¶ 59}    The fact that the evidence is subject to different interpretations does not

render the conviction against the manifest weight of the evidence. Wilson at ¶ 14. A

judgment of conviction should be reversed as being against the manifest weight of the

evidence only in exceptional circumstances. Martin at 175.

       {¶ 60}    The State presented evidence that Brown’s gun was fired downward into the

victim’s temple at close range, that five pounds of pressure was required to pull the trigger of

this gun, that Brown had previously abused and threatened the victim, and that he fled the

scene rather than seeking help for the victim. Brown testified that the victim had been shot

accidentally as she tried to grab the gun from him. The jury’s decision to credit the State’s

evidence did not create a manifest injustice and was not against the manifest weight of the
                                                                                          20

evidence.

       {¶ 61}     The fourth assignment of error is overruled.

       {¶ 62}     The judgment of the trial court will be affirmed.

                                          ..........

FAIN, J., concurs.

GRADY, P.J., dissenting:

       {¶ 63}     Defendant claimed that Marquita Brown’s death was an accident, the result

of their struggle over a gun. The State’s theory was that Defendant had instead purposely

caused Marquita Brown’s death by shooting her with a gun he held. In support of that

theory, the State offered extrinsic evidence of Defendant’s prior acts of violence committed

against or directed toward Marquita Brown. The State also offered evidence of a threat

Defendant made involving use of a gun.           The State also offered “profile” evidence of

domestic violence offenders and their victims.

       {¶ 64}     “Extrinsic act evidence may be admissible to negate a mistake or accident,

and, obviously, this theory is closely linked with a demonstration of intent.” Weissenberger,

Ohio Evidence Treatise, (2010 Ed.), Section 404.25. For that purpose, when a defendant

claims or the evidence suggests that a result of his conduct was an accident, extrinsic act

evidence may be introduced to show that the defendant’s conduct was not accidental but

purposeful. Evid.R. 404(B). If the extrinsic act evidence is instead offered to prove that the

defendant engaged in conduct of a different kind, the extrinsic act evidence is offered to

prove a propensity to engage in such other conduct, which is inadmissible pursuant to

Evid.R. 404(A).
                                                                                          21

         {¶ 65}   Defendant’s threat at some time in the past to come back to Marquita

Brown’s house with his “chopper” implies an intent to do her harm with a gun, and was

admissible to prove that he purposely shot Marquita Brown. The evidence of Defendant’s

other, prior “bad acts” was irrelevant to prove that he acted purposely to shoot Marquita

Brown, except on the basis of the prohibited inference of conforming conduct. The trial

court erred in admitting that evidence. That evidence was also inadmissible to prove why

Marquita Brown continued to give Defendant access to her home, because that issue was

irrelevant to Defendant’s guilt or innocence for the conduct in which he allegedly engaged.

         {¶ 66}   Even more disturbing is the testimony of Margene Robinson concerning the

“profile” of domestic violence offenders and their victims. We rejected such evidence as

prohibited “propensity” evidence in State v. Smith, 84 Ohio App.3d 647, 617 N.E.2d 1160

(1992). The purpose of the profile evidence was to demonstrate Defendant’s propensity to

engage in violent behavior, supporting an inference that he acted purposely to shoot Marquita

Brown.     The trial court erred when it allowed the State to introduce the testimony of

Robinson.

         {¶ 67}   The State no doubt had a difficult case to prove. The shot that killed

Marquita Brown was fired in a closed room, and there were no eyewitnesses. Nevertheless,

the State may not seek to      prove Defendant’s guilt through character evidence, absent

Defendant’s prior introduction of character evidence on his own behalf. Evid.R. 404(A)(1).

Justice is not advanced by bending the rules to afford the prosecution a better chance to

obtain a conviction.

                                         ..........
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Copies mailed to:

Kirsten A. Brandt
J. Allen Wilmes
Hon. Mary L. Wiseman
