State v. Brown , 2024 Ohio 749 ( 2024 )


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  • [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
    v. Brown, Slip Opinion No. 
    2024-Ohio-749
    .]
    NOTICE
    This slip opinion is subject to formal revision before it is published in an
    advance sheet of the Ohio Official Reports. Readers are requested to
    promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
    South Front Street, Columbus, Ohio 43215, of any typographical or other
    formal errors in the opinion, in order that corrections may be made before
    the opinion is published.
    SLIP OPINION NO. 
    2024-OHIO-749
    THE STATE OF OHIO, APPELLANT v. BROWN, APPELLEE.
    [Until this opinion appears in the Ohio Official Reports advance sheets,
    it may be cited as State v. Brown, Slip Opinion No. 
    2024-Ohio-749
    .]
    Criminal law—Robbery—Court of appeals erred in determining that evidence was
    insufficient to support trial court’s conclusion that appellee committed a
    theft offense and that in doing so, he threatened to inflict physical harm on
    two different people—R.C. 2911.02(A) (defining robbery as threatening to
    inflict physical harm on another while committing a theft offense) does not
    require that theft victim be person who was threatened—A defendant may
    not assert error on appeal based on late disclosure of evidence alleged to
    be materially exculpatory that was not disclosed until trial unless defendant
    raised the issue in trial court by requesting continuance or mistrial or by
    some other means— Appellee forfeited claim that he was entitled to new
    trial based on state’s purported violation of Brady v. Maryland—Court of
    appeals’ judgment reversed and cause remanded for court of appeals to
    consider appellee’s remaining assignments of error.
    SUPREME COURT OF OHIO
    (No. 2022-1182—Submitted September 12, 2023—Decided March 5, 2024.)
    APPEAL from the Court of Appeals for Hamilton County,
    No. C-210355, 
    2022-Ohio-2752
    .
    __________________
    DEWINE, J.
    {¶ 1} A woman arranged to buy a car on a social-media app. She took a
    friend with her to meet the seller. The meeting was a setup. When the purported
    seller arrived, the buyer handed her friend the money to hold. The seller pulled a
    gun and demanded that the buyer’s friend hand over the money. She did.
    {¶ 2} The perpetrator was arrested and ultimately convicted of robbing both
    women and illegally having a gun.        But the First District Court of Appeals
    overturned the convictions. 
    2022-Ohio-2752
    , 
    198 N.E.3d 111
    , ¶ 70. It held that
    the defendant could not be convicted of robbing the buyer because she was not the
    one holding the money. See id. at ¶ 54. And it determined that the state had violated
    Brady v. Maryland, 
    373 U.S. 83
    , 
    83 S.Ct. 1194
    , 
    10 L.Ed.2d 215
     (1963), by using
    information at trial that had not previously been disclosed to the defense, even
    though the defendant did not object to the use of that information at trial. See 2022-
    Ohio-2752 at ¶ 58-68.
    {¶ 3} We reverse the judgment of the First District and remand the case for
    further review in that court. Under the plain terms of the robbery statute, the
    defendant was properly convicted of robbing both women. And there was no Brady
    violation because the information was disclosed at trial and the defense did not
    move for a continuance or mistrial, or otherwise object to the use of the information.
    I. A Car Deal Turns Out to Be a Setup
    {¶ 4} Holly Smothers arranged to buy a Toyota Corolla for $600 through
    Letgo, an online app. The seller was identified on the app as Danny Buckley. When
    it came time to meet the seller, Smothers took her boyfriend’s aunt, Sharlene
    Johnson Bryant, with her.
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    January Term, 2024
    {¶ 5} Bryant was familiar with the area where the deal was to take place,
    and she gave Smothers a ride there. When the two arrived, Smothers called the
    seller, and he redirected the women to a nearby street. There, a man waved the
    women down and walked up to the passenger side of the car. The man told
    Smothers that he was going to get the Corolla to show her. Smothers handed Bryant
    the money, asking her to hold it while she went to look at the Corolla. As Smothers
    was getting out of Bryant’s car, the man drew a gun, and he demanded that Bryant
    hand over the $600. Smothers was standing right next to the man as he pointed his
    gun at Bryant. Bryant did what she was told, and the man fled with the money.
    {¶ 6} The women called the police. When they arrived at the scene, the
    women described the robber as a black man, around 5’5”, and approximately 120
    pounds. They said that he was wearing a skull cap, shirt, and shorts.
    {¶ 7} The next day, Smothers went to the Letgo app and found the email
    address connected with the Danny Buckley Letgo account. She then found a
    Facebook account associated with the same email address. The Facebook account
    was under the name Rickey Tan.
    {¶ 8} Smothers sent the Facebook information and photographs from the
    Facebook account to the case detective. She also showed the Facebook photos to
    Bryant. From the Facebook information and photos, the police department’s
    intelligence unit was able to identify the man as Rickey Brown.
    {¶ 9} The police department arranged for two photo lineups to be prepared
    and for the victims each to separately review the lineups. Each lineup included a
    photo of Brown, though one different from the ones that Smothers had found on
    Facebook. A “blind administrator,” who knew nothing about the case, administered
    the lineups. Each victim identified Brown. Bryant said that she was positive about
    her identification because of his facial features. Similarly, Smothers said that she
    was 99 percent certain about her identification.
    {¶ 10} For each victim, Brown was indicted on one count of robbery under
    3
    SUPREME COURT OF OHIO
    R.C. 2911.02(A)(2) and one count of aggravated robbery under R.C.
    2911.01(A)(1). He was also indicted for having a weapon while under a disability.
    Brown waived his right to a jury trial, and the court conducted a bench trial.
    {¶ 11} The Facebook photos were disclosed during discovery, but the way
    they were obtained was not.        Although the police knew about Smothers’s
    independent investigation prior to trial, the prosecutors handling the case
    apparently did not learn until trial that Smothers had provided the Facebook photos
    to the police.
    {¶ 12} Smothers’s detective work came out during the state’s direct
    examination of her. Instead of moving for a mistrial or requesting a continuance,
    Brown’s attorney chose to use Smothers’s sleuthing to attempt to discredit the
    victims’ identifications and the police investigation. For example, the attorney had
    the following exchange with Smothers:
    Q.    Ms. Smothers, you did your own investigation to try
    to find those photographs, didn’t you?
    A.    Yes.
    Q.    So you went into the Letgo App—
    A.    Yes.
    Q.    —and you searched around the Letgo App?
    A.    Only in where I text him at.
    Q.    And * * * you started * * * [c]licking on links within
    the Letgo App?
    A.    No. There’s—you—there’s links in the Letgo App,
    but when you go to purchase something, you can go into that
    person’s—that person—whatever they posted, you can actually go
    and see their information, their Gmail and everything—
    ***
    4
    January Term, 2024
    Q.     And so, you actually went and found those pictures
    before you went to the police station, didn’t you?
    A.     Yeah. I believe so. I think. I don’t—really don’t
    remember. It’s been a year ago.
    Q.     Okay. But you had those pictures before you went to
    the police station?
    A.     Yes.
    Q.     And you showed those pictures to Ms. [Bryant]?
    A.     Yes.
    Q.     And you showed those pictures to her before you
    both went to the police station?
    A.     Hmm, yes. * * *
    In cross-examining Smothers, Brown’s attorney also made the point that even if
    Brown’s email address was associated with the Letgo account, that did not
    necessarily establish that Brown was the user of that account.
    {¶ 13} Brown’s attorney similarly cross-examined Bryant about her having
    reviewed a Facebook photo of Brown prior to the lineup administered by the police
    department. And she cross-examined the department’s case detective about relying
    on the Facebook information obtained from Smothers and failing to conduct a more
    thorough investigation of his own.
    {¶ 14} The trial court found Brown guilty of the aggravated robbery of
    Bryant as well as an accompanying firearm specification, the robbery of Smothers,
    and the weapons-under-disability charge. It acquitted Brown on the remaining
    counts. About two weeks later, Brown filed a motion for a new trial. The motion
    asserted that the state violated Brady by not disclosing that Smothers had conducted
    her own investigation and by not revealing that both Smothers and Bryant had
    viewed the Facebook photos prior to the photo lineups.
    5
    SUPREME COURT OF OHIO
    {¶ 15} The trial court denied Brown’s new-trial motion. It explained that
    defense counsel conducted a “rigorous cross-examination [about the way the police
    obtained the Facebook photos] with the witnesses while on the stand. And [defense
    counsel] did a very good job at cross-examining witnesses.” Thus, the court
    concluded that earlier disclosure of this information would not “have resulted in a
    different verdict or outcome.”
    {¶ 16} Brown appealed to the First District, arguing, among other things,
    that the state failed to present sufficient evidence supporting his conviction for the
    robbery of Smothers and that the trial court erred in failing to grant his motion for
    a new trial. The First District, in a 2-to-1 decision, overturned all three of Brown’s
    convictions. The majority first explained that it was reversing Brown’s conviction
    for robbing Smothers on the basis that he did not take money directly from
    Smothers:
    [W]hen no property is taken from a person, a threat of harm used
    against that person does not establish a robbery.
    ***
    Here, the evidence established that Brown took $600 from
    [Bryant] while pointing a gun at her. Although Smothers saw the
    weapon, and the gun was brandished in close proximity to her, no
    evidence was presented that Smothers relinquished the money due
    to the threat of harm. While the money may have belonged to
    Smothers, the money was taken from [Bryant] under the threat of
    harm.
    (Citations omitted.) 
    2022-Ohio-2752
    , 
    198 N.E.3d 111
    , at ¶ 53-54.
    {¶ 17} The First District then explained that it was reversing Brown’s other
    two convictions based on a purported Brady violation. Id. at ¶ 67, 69-70. The
    6
    January Term, 2024
    majority opined that its “confidence in the trial court’s verdict [had been]
    undermined” because “[h]ad the state disclosed Smother[s’s] investigation leading
    to her identification of Brown as the robber, Brown would have had an opportunity
    to challenge both the alleged link to his Facebook page and the reliability of the
    identification.” Id. at ¶ 67.
    {¶ 18} Because the reversal of the conviction for robbing Smothers was
    based on a finding of insufficient evidence, the court of appeals discharged Brown
    from future prosecution on that charge. Id. at ¶ 70. The court remanded the case
    for a new trial on the remaining charges. Id. The court determined that its remand
    for a new trial rendered moot Brown’s remaining assignments of error in which he
    asserted he was improperly handcuffed during trial, he received ineffective
    assistance of counsel, and his convictions were against the manifest weight of the
    evidence. See id. at ¶ 69.
    II. We Reverse the Court of Appeals
    {¶ 19} We accepted the state’s appeal on two propositions of law. In the
    first, it challenges the trial court’s reversal for lack of sufficient evidence of
    Brown’s conviction for robbing Smothers. In the second proposition, the state takes
    issue with the trial court’s decision to grant a new trial on the remaining charges
    based on a purported Brady violation.
    A. The State Presented Sufficient Evidence to Convict Brown of Robbing
    Smothers
    {¶ 20} The court of appeals reversed Brown’s conviction for the robbery of
    Smothers because it concluded that the state had failed to present sufficient
    evidence of the elements of the crime. See id., 
    2022-Ohio-2752
    , 
    198 N.E.3d 111
    ,
    at ¶ 54. A reversal for evidentiary insufficiency is proper only when “the evidence
    presented, when viewed in a light most favorable to the prosecution,” would not
    allow “any rational trier of fact to find the essential elements of the crime beyond a
    reasonable doubt.” State v. Groce, 
    163 Ohio St.3d 387
    , 
    2020-Ohio-6671
    , 170
    7
    SUPREME COURT OF OHIO
    N.E.3d 813, ¶ 7.
    {¶ 21} Brown     was    convicted       of   robbing   Smothers   under   R.C.
    2911.02(A)(2).      That provision provides that “[n]o person, in attempting or
    committing a theft offense or in fleeing immediately after the attempt or offense,
    shall * * * [i]nflict, attempt to inflict, or threaten to inflict physical harm on
    another.”
    {¶ 22} The First District’s reversal of the robbery conviction was based on
    two conclusions by the court.         First, it assumed that because Smothers had
    voluntarily handed her money to Bryant, Smothers was not a victim of a theft
    offense. See 
    2022-Ohio-2752
     at ¶ 54. And second, it concluded as a matter of law
    that a conviction under R.C. 2911.02(A)(2) requires the person threatened and the
    victim of the theft to be the same person. See 
    id.
     The court was wrong on both
    points.
    {¶ 23} We start with the First District’s reading of the statute. By its plain
    terms, R.C. 2911.02(A) requires only that in committing a theft offense, a person
    threatened to inflict physical harm on another. There is no requirement in the
    statute that the theft victim be the same person who was threatened. Quite simply,
    the court of appeals’ gloss on the statute is unsupported by the statutory language.
    {¶ 24} Indeed, the robbery statute criminalizes a threat of physical harm
    made either during a theft offense or “in fleeing immediately after the attempt or
    offense.” R.C. 2911.02(A)(2). In a scenario where a perpetrator flees after
    committing a theft, the victim of the threat will likely be a different person from the
    victim of the theft.
    {¶ 25} We note further that even if the statute did require that the person
    threatened be the victim of the theft (though it clearly does not), there is no basis
    for the First District’s assumption that Smothers was not a victim of the theft. As
    the dissenting judge explained, “Smothers was the owner of the stolen cash,
    Brown’s intended target, and also in close proximity to Brown when he brandished
    8
    January Term, 2024
    a gun.” 
    2022-Ohio-2752
    , 
    198 N.E.3d 111
    , at ¶ 75 (Winkler, J., dissenting). Plainly,
    Smothers was the victim of a theft offense. See R.C. 2913.01(K)(1) (defining “theft
    offense” as including a violation of R.C. 2913.02) and 2913.02(A)(1) (“No person,
    with purpose to deprive the owner of property or services, shall knowingly obtain
    or exert control over either the property or services * * * [w]ithout the consent of
    the owner or person authorized to give consent”).
    {¶ 26} Although the court of appeals assumed that Brown threatened both
    women by brandishing his weapon, Brown now argues that he did not threaten
    Smothers because he pointed the gun only at Bryant. But we have held that “ ‘the
    threat of physical harm need not be explicit; rather, an implied threat of physical
    harm is sufficient to support a conviction under R.C. 2911.02(A)(2).’ ” State v.
    Evans, 
    122 Ohio St.3d 381
    , 
    2009-Ohio-2974
    , 
    911 N.E.2d 889
    , ¶ 23, quoting State
    v. Harris, Franklin App. No. 07AP-137, 
    2008-Ohio-27
    , ¶ 14 (10th Dist.). We have
    further explained that “[o]ne cannot display, brandish, indicate possession of, or
    use a deadly weapon in the context of committing a theft offense without conveying
    an implied threat to inflict physical harm.” 
    Id.
    {¶ 27} Smothers wasn’t a bystander; she was a part of every aspect of the
    two women’s interaction with Brown. She arranged the car purchase, it was her
    money that was stolen, and she was next to Brown when he pointed a gun at Bryant.
    By brandishing a weapon to steal money that belonged to Smothers, Brown
    implicitly threatened physical harm to Smothers even though the gun was pointed
    at Bryant.
    {¶ 28} The evidence presented was sufficient for the trial court to conclude
    that Brown committed a theft offense and that in doing so, he “threaten[ed] to inflict
    physical harm” on two different people, one being Smothers. The court of appeals
    erred in holding otherwise.
    B. Brown Forfeited Any Brady Claim
    {¶ 29} The state’s second proposition of law takes issue with the First
    9
    SUPREME COURT OF OHIO
    District’s conclusion that Brown was entitled to a new trial based on a purported
    Brady violation. In Brown’s motion for a new trial, he claimed that not learning
    about Smothers’s independent investigation until trial prevented him from moving
    to suppress the photo-lineup identifications based on the witnesses’ prior exposure
    to the Facebook photos—though he did not explain why he believed such a motion
    would have been successful. He also argued that having this information before
    trial would have allowed him to present expert testimony on “how irreparable
    misidentifications occur.” On appeal, he now also claims that more time would
    have allowed him to research the Letgo app and potentially show the “concocted
    linkage testimony” to be false by looking “into whether the Letgo app could be
    traced to the Facebook or Google account used to initiate the Letgo app.”
    {¶ 30} In Brady, the United States Supreme Court held that a state violates
    the Due Process Clause of the Fourteenth Amendment to the United States
    Constitution by suppressing evidence favorable to the accused where the evidence
    is material to guilt. 
    373 U.S. at 87
    , 
    93 S.Ct. 1194
    , 
    10 L.Ed.2d 215
    . To establish a
    Brady violation, a defendant must demonstrate (1) that the evidence is favorable to
    the defendant, because it is either exculpatory or impeaching, (2) that the evidence
    was willfully or inadvertently suppressed by the state, and (3) that the defendant
    was prejudiced as a result. Strickler v. Greene, 
    527 U.S. 263
    , 281-282, 
    119 S.Ct. 1936
    , 
    144 L.Ed.2d 286
     (1999). Evidence is material—or prejudicial—“ ‘when
    there is a reasonable probability that, had the evidence been disclosed, the result of
    the proceeding would have been different.’ ” Turner v. United States, 
    582 U.S. 313
    , 324, 
    137 S.Ct. 1885
    , 
    198 L.Ed.2d 443
     (2017), quoting Cone v. Bell, 
    556 U.S. 449
    , 469-470, 
    129 S.Ct. 1769
    , 
    173 L.Ed.2d 701
     (2009).
    {¶ 31} Brady applies to the “the discovery, after trial, of information which
    had been known to the prosecution but unknown to the defense.” United States v.
    Agurs, 
    427 U.S. 97
    , 103, 
    96 S.Ct. 2392
    , 
    49 L.Ed.2d 342
     (1976). Thus, “[s]trictly
    speaking, Brady is not violated when disclosure occurs during trial, even when
    10
    January Term, 2024
    disclosure surprises the defendant with previously undisclosed evidence.” State v.
    Iacona, 
    93 Ohio St.3d 83
    , 100, 
    752 N.E.2d 937
     (2001) (lead opinion). Nonetheless,
    three justices in Iacona suggested that “the philosophical underpinnings of Brady
    support the conclusion that even disclosure of potentially exculpatory evidence
    during trial may constitute a due process violation if the late timing of the disclosure
    significantly impairs the fairness of the trial.” 
    Id.
     The lead opinion then went on
    to analyze the defendant’s contention that the trial court erred by failing to grant
    her motion for a mistrial “in this context.” 
    Id.
    {¶ 32} We need not decide here whether a Brady violation is ever properly
    grounded in evidence that is disclosed during trial, because we determine that under
    the facts of this case, Brown forfeited any Brady claim.1
    {¶ 33} In Iacona, this court upheld the trial court’s decision to deny the
    defense motion for a mistrial based on the state’s alleged failure to disclose certain
    evidence before trial. Iacona at 101. In doing so, the lead opinion noted that when
    evidence is disclosed during trial, “a trial court has authority, pursuant to [the Rules
    of Criminal Procedure], to grant a continuance or make other orders that the court
    deems just to ensure that the recently disclosed information can be evaluated, and
    used at defense counsel’s option, before the trial is concluded.” Id. at 100.
    {¶ 34} The lead opinion in Iacona did not “go so far as to hold, based on
    the facts of [that] case, that failure to ask for a continuance during trial always
    results in a waiver of the right to assert an alleged Brady violation on appeal.” Id.
    at 101. But it did reject the defendant’s “contention that she could not have made
    full and effective use of the [late-disclosed evidence] had she sought and obtained
    1. Brown contends that the state waived its argument that there is no Brady violation when evidence
    is disclosed at trial and the defense fails to request a continuance by failing to present this argument
    in its briefs in the court of appeals. But in his First District brief, Brown conceded that there was
    no Brady violation. Further, the state in its First District brief argued that “Brown’s trial counsel
    was afforded the opportunity to thoroughly cross-examine each of the witnesses about the Facebook
    photographs and to argue how those photographs may have influenced the identification of Brown.”
    Thus, we reject Brown’s waiver arguments.
    11
    SUPREME COURT OF OHIO
    a continuance and chosen to modify her defense strategy to emphasize the
    [evidence].” Id.
    {¶ 35} This case is different from Iacona. Brown not only did not ask for a
    continuance, but (unlike the defendant in Iacona) he did not request a mistrial
    either. “A first principle of appellate jurisdiction is that a party ordinarily may not
    present an argument on appeal that it failed to raise below.” State v. Wintermeyer,
    
    158 Ohio St.3d 513
    , 
    2019-Ohio-5156
    , 
    145 N.E.3d 278
    , ¶ 10; see also State v.
    Glaros, 
    170 Ohio St. 471
    , 
    166 N.E.2d 379
     (1960), paragraph one of the syllabus
    (“It is a general rule that an appellate court will not consider any error which
    counsel * * * could have called but did not call to the trial court’s attention at a time
    when such error could have been avoided or corrected by the trial court”). Absent
    such a requirement, counsel would be able “to place his client in a position where
    he could take advantage of a favorable verdict and, at the same time, avoid an
    unfavorable verdict merely because of an error of the trial judge that counsel made
    no effort to prevent * * * when such error could have been avoided.” Glaros at 475.
    {¶ 36} Trial judges have considerable tools available to handle discovery
    violations, including the granting of continuances and mistrials. See Crim.R.
    16(L)(1) (“If at any time during the course of the proceedings it is brought to the
    attention of the court that a party has failed to comply with [Crim.R. 16 (Discovery
    and inspection)] or with an order issued pursuant to [that] rule, the court may order
    such party to permit the discovery or inspection, grant a continuance, or prohibit
    the party from introducing in evidence the material not disclosed, or it may make
    such other order as it deems just under the circumstances”); see also State v. Cepec,
    
    149 Ohio St.3d 438
    , 
    2016-Ohio-8076
    , 
    75 N.E.3d 1185
    , ¶ 89, quoting State v.
    Garner, 
    74 Ohio St.3d 49
    , 59, 
    656 N.E.2d 623
     (1995) (“The decision whether to
    grant or deny a mistrial ‘lies within the sound discretion of the trial court’ ”). But
    these tools are to no avail unless claims of error are raised at the trial level. Thus,
    we hold today that a defendant may not assert error on appeal based on the late
    12
    January Term, 2024
    disclosure of evidence alleged to be materially exculpatory that is not disclosed
    until trial unless the defendant has raised the issue in the trial court by asking for a
    continuance or a mistrial, or by some other means.
    {¶ 37} Brown did not ask for a continuance or a mistrial at any time during
    the trial. Instead, once Smothers’s independent investigation was revealed at trial,
    Brown chose to use that information at trial to attempt to discredit the reliability of
    the victims’ photo-lineup identifications and the thoroughness of the police
    investigation. “[W]e must infer from [Brown’s] decision to proceed [with the] trial
    without objection that he believed he had enough time to make use of the evidence.”
    United States v. Todd, 
    825 Fed.Appx. 313
    , 320 (6th Cir.2020). Thus, Brown has
    forfeited any Brady claim.
    III. Conclusion
    {¶ 38} We reverse the judgment of the First District Court of Appeals and
    remand the case to that court for it to consider Brown’s remaining assignments of
    error.
    Judgment reversed
    and cause remanded.
    KENNEDY, C.J., and DONNELLY and POWELL, JJ., concur.
    FISCHER, J., concurs, with an opinion joined by DEWINE and POWELL, JJ.
    BRUNNER, J., concurs in judgment only, with an opinion joined by
    STEWART, J.
    MIKE POWELL, J., of the Twelfth District Court of Appeals, sitting for
    DETERS, J.
    __________________
    13
    SUPREME COURT OF OHIO
    FISCHER, J., concurring.
    {¶ 39} I join the majority opinion.    I write separately to express my
    disagreement with the inclusion of what I deem to be advisory language in the
    opinion concurring in judgment only. It is well established that this court does not
    issue advisory opinions. See, e.g., State ex rel. Davis v. Pub. Emps. Retirement Bd.,
    
    120 Ohio St.3d 386
    , 
    2008-Ohio-6254
    , 
    899 N.E.2d 975
    , ¶ 43; State ex rel. Baldzicki
    v. Cuyahoga Cty. Bd. of Elections, 
    90 Ohio St.3d 238
    , 242, 
    736 N.E.2d 893
     (2000);
    Egan v. Natl. Distillers & Chem. Corp., 
    25 Ohio St.3d 176
    , 177-178, 
    495 N.E.2d 904
     (1986). But the opinion concurring in judgment only addresses issues that are
    not properly before this court, including Brown’s actual guilt or innocence, the
    effectiveness of his trial counsel, and the merits of Brown’s Brady claim. See
    opinion concurring in judgment only, ¶ 60, 65, 68, and 70; Brady v. Maryland, 
    373 U.S. 83
    , 87, 
    83 S.Ct. 1194
    , 
    10 L.Ed.2d 215
     (1963).
    {¶ 40} Brown’s actual guilt or innocence and the effectiveness or
    ineffectiveness of his trial counsel are completely unrelated to the issues that are
    before this court and therefore should not be addressed by this court. Providing
    guidance on Brown’s ineffective-assistance-of-counsel claim is particularly
    inappropriate because the First District Court of Appeals will need to address that
    issue on remand, and it should not be swayed by an advisory opinion from this court
    on an issue that is not before us. Furthermore, the merits of Brown’s Brady claim
    should not be addressed because the opinion concurring in judgment only agrees
    with the majority opinion’s determination that Brown waived his Brady claim by
    not seeking a continuance or mistrial. See opinion concurring in judgment only at
    ¶ 63. Because that claim was waived, we need not, and should not, address its
    merits.
    {¶ 41} It is inappropriate and ill-advised for this court to issue advisory
    opinions because they have the potential to influence lower courts’ resolution of
    issues without this court’s having had the benefit of briefing or lower-court
    14
    January Term, 2024
    analysis. That is why this court has long had a policy of not issuing advisory
    opinions, and I object to the deviation from that policy today by the opinion
    concurring in judgment only.
    DEWINE and POWELL, JJ., concur in the foregoing opinion.
    __________________
    BRUNNER, J., concurring in judgment only.
    I. INTRODUCTION
    {¶ 42} I agree with the majority that the evidence was sufficient to convict
    appellee, Rickey Brown, of robbery and that Brown’s counsel did not preserve a
    due-process claim for review. However, the majority opinion’s description of the
    facts and circumstances leading to the victims’ identification of Brown is
    incomplete, and because Brown may be innocent and may have received ineffective
    assistance of counsel, I write separately to more fully discuss the facts and
    circumstances leading to Brown’s convictions.
    II. FACTS AND PROCEDURAL HISTORY
    {¶ 43} On June 16, 2020, a Hamilton County grand jury indicted Brown on
    two counts of aggravated robbery, two counts of robbery, and one count of having
    a weapon while under a disability. Brown waived a trial by jury, and the case
    proceeded to a bench trial. At the outset of trial, Brown stipulated that he was not
    permitted to possess a firearm, as a result of a prior conviction for burglary.
    {¶ 44} The first witness to testify was a Cincinnati Police Department
    officer who was working on May 3, 2020. At 4:30 p.m. that day, the officer was
    called to the Avondale area on report of an armed robbery, where he encountered
    Holly Smothers and Sharlene Johnson Bryant. The two women reported that they
    were in the area for the purpose of buying a car (a 2001 Toyota Corolla CE) that
    they had seen advertised on the Letgo app. Smothers and Bryant told the officer
    that they had been approached by the purported car-seller, a black male who
    appeared to be about 20 years old, 5’5” tall, and 120 pounds. He was wearing all
    15
    SUPREME COURT OF OHIO
    black clothing, including a skull cap, shirt, and shorts. Smothers got out of her
    vehicle to examine the car she planned to buy and handed the money ($600) to
    Bryant. At that point, the purported seller brandished a handgun, demanded and
    received the money from Bryant, and fled. Neither witness mentioned tattoos when
    describing the man with the gun to the responding officer.
    {¶ 45} The next witness to testify at trial was a Cincinnati Police
    Department detective, who had served as a blind administrator for the photographic
    lineups presented to Smothers and Bryant, as he had not been involved in the case.
    According to the detective, both women identified Brown as the suspect.
    {¶ 46} During opening statements, the prosecutor had questioned how the
    police knew to include Brown in the lineup:
    [Prosecutor]: On the phone there was a name that was given
    that [the victims] thought they were dealing with, which was not Mr.
    Brown’s correct name.
    The name was Danny Buckley; and that name was given to
    [the police officer in charge of the investigation], who forwarded
    that name to Real Time Crime, which is a Cincinnati division, or
    part of the Cincinnati Police Department.
    And what they can do is, when you give them a name of a
    person, they can somehow use their information system to find out
    what that person’s real name and photo look like. And when he
    submitted that name to the Real Time Crime, it came back as Rickey
    Brown, and he got a photograph of Rickey Brown.
    [Defense]: Your Honor, I’m going to object to this.
    None of this information was provided in discovery, making
    statements about the Real Time crime.
    16
    January Term, 2024
    [Prosecutor]: I’m not planning on calling them as witnesses,
    Judge. This is how they got his photo.
    The name Danny Buckley was given to some department,
    and then it came back—they came back with his photo.
    However, that representation turned out to be incorrect.
    {¶ 47} When Smothers and Bryant testified, they confirmed the details of
    the robbery and identified Brown as the perpetrator, though they admitted that they
    had not noticed any tattoos on the man with a gun. Smothers initially testified that
    she had connected the Letgo profile for “Danny Buckley,” whom she had agreed to
    meet, with Brown’s Facebook account. But Smothers was vague about how she
    had made the connection, and toward the end of her testimony on direct and again
    during cross-examination, she testified in more detail about what happened after
    the robbery. Smothers ultimately testified that the day after the robbery, she found
    an advertisement on the Letgo app for what she perceived to be the same car. She
    used details she had observed in the Letgo app related to the car sale to locate Brown
    on Facebook. Believing that Brown looked like the man who had robbed her and
    Bryant, Smothers turned over photos of him to the police before they participated
    as witnesses in the police lineup. By providing Brown’s photos, Smothers and
    Bryant assisted with the formation of the lineup for which they were the identifying
    witnesses in naming the robbery suspect.
    {¶ 48} The prosecution’s final witness at trial was the officer in charge of
    the investigation. He testified that Smothers contacted him and emailed him photos
    of the suspect on May 7 and that the photo lineup was created based on those
    materials. He testified that he never subpoenaed Letgo or searched for the “Danny
    Buckley” profile that had posted the original advertisement to determine whether it
    was linked to Brown. He also did not subpoena or otherwise obtain Smothers’s and
    17
    SUPREME COURT OF OHIO
    Brown’s phone records to determine whether they had spoken about the car on the
    phone as Smothers said she had with the sham seller.
    {¶ 49} After the state rested, the defense put on an alibi case. First,
    Shemaiyah Thomas testified (and presented documentation to confirm) that May 3
    was her birthday and that she had rented an Airbnb for that evening to celebrate
    there with Brown and Jasmine Pennington.            Text messages with Brown
    corroborated Thomas’s testimony that Brown and Pennington arrived at the Airbnb
    at 4:52 p.m., and Thomas testified that the three of them spent the remainder of the
    day together. Moreover, prior to Brown’s arrival at the Airbnb, Thomas talked to
    him on the phone while he and Pennington were at Kroger purchasing birthday
    items, and Thomas could tell where they were because of the background noises.
    Pennington also testified that Brown was wearing jeans on the day in question
    (unlike the man with a gun, who was reported to have been wearing black shorts).
    {¶ 50} Pennington testified next. She confirmed that starting at about 3:00
    p.m. on May 3, she and Brown went to Kroger, then to Mr. Sushi, and then to the
    Airbnb. They briefly left the Airbnb together to return to Mr. Sushi when they
    realized that there was an error with the order that needed to be corrected.
    Pennington testified, in short, that she was with Brown in the car and at Kroger
    around the time of the robbery.
    {¶ 51} Finally, Brown testified that he did not rob Smothers or Bryant. He
    testified, consistently with Pennington and Thomas, that he and Pennington went
    to Kroger and then to Mr. Sushi. He presented records from his debit card showing
    that he paid for food at Mr. Sushi on May 3. He also testified that the car he had
    attempted to sell on Letgo was a 1998 Toyota Corolla, not a 2001, and that his
    Letgo profile was under his name, Rickey Brown—not “Danny Buckley.” In
    addition, he provided title records showing that he had owned and later sold a 1998
    Toyota Corolla. He also pointed out that he is not 5’5” and 120 pounds but is 5’8”
    and was 150 pounds at the time of the robbery (he was 170 pounds by the time of
    18
    January Term, 2024
    trial). He further demonstrated the extensive tattoos on his arms. Finally, Brown
    testified that he had pled guilty to burglary in the past, because he had committed
    it. However, he maintained that he did not commit this robbery.
    {¶ 52} The trial judge found Brown guilty of one count of aggravated
    robbery (of Bryant), one count of robbery (of Smothers), and one count of having
    a weapon while under disability.
    {¶ 53} Two weeks after the verdict, Brown requested a new trial, arguing
    that the prosecution had failed to disclose the fact that Smothers and Bryant did
    their own flawed investigation that led them to incorrectly identify Brown as the
    man with a gun. That investigation, he argued, rendered the lineup procedure and
    subsequent identifications unreliable—a fact that could have been explored by the
    defense through the introduction of expert testimony had the defense been aware of
    it before trial. The trial court denied the motion, reasoning:
    Criminal Rule 33 governs consideration in the factors that
    the Court must consider when deciding the trial. The grounds
    clearly set forth in Rule 33, irregularity, misconduct, accident or
    surprise or just that a burden is not sustained by sufficient evidence
    or is contrary to law.
    The Court finds that none of those factors were established
    by the defense to grant a new trial. I know that the defense does rely
    on an alleged Brady violation. I will note for the record that the
    information that the defense relies on, and that is very specific that
    the defendant did know prior to trial that one of the eyewitness
    victims had done her own prior investigation to find Facebook
    photos of the defendant in order to give them to the police to say
    here’s the guy that robbed us.
    19
    SUPREME COURT OF OHIO
    But I will note that during the trial, there was rigorous cross-
    examination of that information with the witnesses while on the
    stand. And [the defense] did a very good job at cross-examining
    witnesses.
    I do not believe based on the evidence that even if the
    defense had known that prior to trial that it would have resulted in a
    different verdict or outcome. And so for those reasons the motion
    for a new trial is denied.
    The trial court then proceeded directly to sentencing and imposed a prison sentence
    of six years.
    {¶ 54} On appeal, the First District reversed, finding insufficient evidence
    that Brown robbed Smothers because it was undisputed that Brown took the money
    from Bryant, not Smothers. 
    2022-Ohio-2752
    , 
    198 N.E.3d 111
    , ¶ 50-54. It also
    found that the trial court erred in denying Brown’s motion for a new trial:
    Although the trial court concluded that the motion was based
    on newly discovered evidence pursuant to Crim.R. 33(A)(5), the
    motion alleged prosecutorial misconduct for Brady violations under
    Crim.R. 33(A)(2) for withholding evidence. The evidence that was
    withheld was that Smothers, while conducting her own
    investigation, determined that Danny Buckley’s Letgo account was
    linked to Brown’s Facebook page. The discovery of this link led
    Smothers to identify Brown as the perpetrator after viewing his
    Facebook photos. Smothers printed the photos and showed them to
    [Bryant] before the police lineup. The photos were then given to
    [the police] who used the photos to generate a lineup.
    20
    January Term, 2024
    It is clear from the prosecutor’s opening statement and [the]
    testimony [of the officer in charge of the police investigation] that
    [the officer] was aware of Smothers’s investigation and
    identification of Brown and did not inform the prosecutor. In his
    opening remarks, the prosecutor stated that the Real Time Crime
    unit’s investigation revealed that Danny Buckley was an alias for
    Rickey Brown. Based on this investigation, a police lineup was
    conducted, and both Smothers and [Bryant] identified Brown. After
    identifying Brown as the suspect, Smothers went to Brown’s
    Facebook page and printed the photos. Although the prosecutor did
    not act in bad faith, the inquiry is whether Brown’s due-process
    rights were violated by the withholding of the evidence. [State v. ]
    Johnston, 39 Ohio St.3d [48] 60, 
    529 N.E.2d 898
     [1988]; Brady[ v.
    Maryland], 373 U.S. [83] 87, 
    83 S.Ct. 1194
    , 
    10 L.Ed.2d 215
     [1963].
    Smothers identified Brown as the robber based upon her own
    investigation. This evidence was material because the identification
    of Brown as the robber was the sole evidence used to convict him.
    In finding Brown guilty, the trial court relied primarily on the
    identifications made by Smothers and [Bryant]. After viewing the
    Facebook photos of Brown, both positively identified him in the
    police lineup, although their initial descriptions of the robber with
    the gun did not match Brown, and neither noticed the tattoos
    covering both of his arms.
    ***
    * * * Accordingly, identification was the sole issue of
    dispute in this case. Brown provided three witnesses, text messages,
    and two transaction reports to establish that he was at Kroge[r] and
    Mr. Sushi in Clifton at the time of the robbery. Brown was wearing
    21
    SUPREME COURT OF OHIO
    jeans that day, and the person who committed the robbery was
    wearing shorts. The robber was accompanied by another black
    male, and Brown was with a female.
    Smothers testified that Brown’s Facebook page was linked
    to Danny Buckley’s account, but could not articulate how she made
    that determination. Smothers stated that she found the same car for
    sale the following day, but the car that Brown listed for sale was a
    1998 Toyota Corolla LE, not a 2001 Toyota Corolla CE. Danny
    Buckley’s account had been verified by Google, and the record is
    unclear as to how Smothers determined Buckley’s account was
    linked to Brown’s Facebook page.
    For these reasons, we find that our confidence in the trial
    court’s verdict is undermined, and Brown’s substantial rights were
    materially affected.      Had the state disclosed Smother[s]’s
    investigation leading to her identification of Brown as the robber,
    Brown would have had an opportunity to challenge both the alleged
    link to his Facebook page and the reliability of the identification.
    Id. at ¶ 60-67. Based on these conclusions, the First District deemed moot Brown’s
    remaining assignments of error, id. at ¶ 69, including his contention that “trial
    counsel was ineffective for failing to request a continuance to investigate critical,
    surprise evidence,” id. at ¶ 49.
    {¶ 55} The state appealed, and we accepted the appeal on two propositions
    of law:
    1. An individual is a victim of robbery under R.C.
    2911.02(A)(2) when that individual is the owner of what is stolen,
    22
    January Term, 2024
    is the offender’s intended target, and is also in close proximity to the
    gun brandished by the offender as the property is taken.
    2. A Brady violation does not occur under Crim.[R.]
    33(A)(2) when a witness confirms the suspect’s identification via
    social media and such evidence is available at trial.
    See 
    168 Ohio St.3d 1470
    , 
    2022-Ohio-4380
    , 
    199 N.E.3d 545
    .
    III. DISCUSSION
    {¶ 56} For clarity of discussion, I will address Brown’s second proposition
    of law first.
    A. Second Proposition of Law—Brady Violation
    {¶ 57} The prosecution has an “affirmative duty to disclose evidence
    favorable to a defendant,” and that duty forbids suppression by the prosecution of
    evidence “favorable” to an accused “where the evidence is material either to guilt
    or to punishment, irrespective of the good faith or bad faith of the prosecution.”
    Kyles v. Whitley, 
    514 U.S. 419
    , 432, 
    115 S.Ct. 1555
    , 
    131 L.Ed.2d 490
     (1995),
    quoting Brady v. Maryland, 
    373 U.S. 83
    , 87, 
    83 S.Ct. 1194
    , 
    10 L.Ed.2d 215
     (1963).
    The duty to disclose persists even in the absence of a defense request. See United
    States v. Agurs, 
    427 U.S. 97
    , 110, 
    96 S.Ct. 2392
    , 
    49 L.Ed.2d 342
     (1976). Further,
    the prosecution may not claim ignorance, since a prosecutor “has a duty to learn of
    any favorable evidence known to the others acting on the government’s behalf in
    the case, including the police.”       Kyles at 437.      And this duty involves a
    determination of whether such evidence is material to the defendant. “The evidence
    is material only if there is a reasonable probability that, had the evidence been
    disclosed to the defense, the result of the proceeding would have been different. A
    ‘reasonable probability’ is a probability sufficient to undermine confidence in the
    outcome.” State v. Lawson, 
    64 Ohio St.3d 336
    , 343, 
    595 N.E.2d 902
     (1992),
    quoting United States v. Bagley, 
    473 U.S. 667
    , 682, 
    105 S.Ct. 3375
    , 
    87 L.Ed.2d 23
    SUPREME COURT OF OHIO
    481 (1985) (lead opinion). And the materiality of “suppressed evidence [is]
    considered collectively, not item by item.” Kyles at 436.
    {¶ 58} In this case, it is apparent that the prosecution did not disclose that
    Smothers’s online sleuthing was its basis for linking “Danny Buckley” to Brown.
    The trial transcript indicates that even during opening statements, the prosecutor
    appeared unaware of Smothers’s investigation.
    {¶ 59} Initially, Smothers’s testimony appeared to inculpate rather than
    exculpate Brown. But Smothers’s testimony presented serious questions about the
    reliability of her identification of Brown that were material to his defense. The fact
    that Smothers had conducted her own online investigation should have been
    disclosed in advance of trial. The cross-examination of Smothers revealed that she
    conducted that investigation the day after the robbery, found what she believed to
    be the same car advertised on Letgo, and used that to find Brown’s Facebook page.
    The upshot of this testimony is that Smothers may well have identified the wrong
    man, because Brown was selling a similar but not identical car—a 1998 Toyota
    Corolla as opposed to a 2001 Toyota Corolla. The potential for misidentification
    is further confirmed by the fact that Brown did not physically resemble the man
    with a gun in size (being 3 inches taller and 30 pounds heavier), was dressed
    differently on the day of the robbery, and had extensive tattoos, which neither
    victim noticed on the man with the gun. Moreover, Brown had a plausible and
    reasonably well-documented alibi. This is all-the-more concerning because the
    police essentially did nothing to confirm or dispute the results of Smothers’s
    investigation. The police simply took the photos she provided and included Brown
    in the lineup even though Smothers was the witness making an identification of the
    suspect for the police.
    {¶ 60} Because Brown never had this information before trial, he was
    deprived of the opportunity to challenge Smothers’s investigation. Had he been
    informed of Smothers’s part in preparing the lineup, he could have, for example,
    24
    January Term, 2024
    reviewed her records, Letgo’s records, or phone records; determined what
    advertisements were linked with his Facebook page; and argued that the link she
    drew to him was mistaken. He also could have hired an expert to testify about
    confirmation bias and the tainted uselessness of the later police and in-court
    identifications, given that Smothers and Bryant had already determined that Brown
    was the man with a gun, based on their incorrect belief that he was advertising the
    same car. In short, Smothers’s amateur investigation turned out to be the crux of
    the state’s evidence in the case. The state’s failure to disclose that investigation
    before trial deprived Brown of material evidence that was favorable to his defense
    and undermines confidence in his guilt.
    {¶ 61} But the majority and the state are correct that despite the fact that
    Smothers’s investigation was at the core of the prosecution’s case, it was revealed
    at trial before the verdict and with enough time for the defense to act on the
    information. Thus, this is not a typical Brady violation. We have previously stated:
    Strictly speaking, Brady is not violated when disclosure occurs
    during trial, even when disclosure surprises the defendant with
    previously undisclosed evidence. State v. Wickline (1990), 
    50 Ohio St.3d 114
    , 116, 
    552 N.E.2d 913
    , 917. In such a circumstance a trial
    court has authority, pursuant to Crim.R. 16(E)(3),[2] to grant a
    continuance or make other orders that the court deems just to ensure
    that the recently disclosed information can be evaluated, and used at
    defense counsel’s option, before the trial is concluded.
    It has, however, been held that the philosophical
    underpinnings of Brady support the conclusion that even disclosure
    of potentially exculpatory evidence during trial may constitute a due
    2. For the current language, see Crim.R. 16(L)(1).
    25
    SUPREME COURT OF OHIO
    process violation if the late timing of the disclosure significantly
    impairs the fairness of the trial. Even where information may be
    exculpatory, “no due process violation occurs as long as Brady
    material is disclosed to a defendant in time for its effective use at
    trial.” United States v. Smith Grading & Paving, Inc. (C.A.4, 1985),
    
    760 F.2d 527
    , 532. See, also, United States v. Starusko (C.A.3,
    1984), 
    729 F.2d 256
    , 262; United States v. O’Keefe (C.A.5, 1997),
    
    128 F.3d 885
    , 898.
    State v. Iacona, 
    93 Ohio St.3d 83
    , 100, 
    752 N.E.2d 937
     (2001). While the defense
    tried to make effective use of the belatedly disclosed material evidence, it failed to
    do so largely because it was unable to definitively flesh out how Smothers came
    across Brown’s Facebook page or illustrate why her discovery of it tainted the later
    lineups.
    {¶ 62} It is undisputed that the defense did not seek to avail itself of Crim.R.
    16(L)(1) to seek a continuance or mistrial to give it the opportunity to evaluate,
    investigate, and take full advantage of the belatedly disclosed information.
    {¶ 63} I agree with the majority’s conclusion that Brown’s trial counsel
    forfeited any due-process claim by not seeking a continuance or mistrial to afford
    the defense time to explore and make effective use of the information about
    Smothers’s investigation. See Iacona at 100-101. But I note that on remand, Brown
    will have the opportunity to argue that his counsel was ineffective for failing to
    seek a continuance or mistrial.
    {¶ 64} Ineffective-assistance-of-counsel claims are assessed using the two-
    pronged approach set forth in Strickland v. Washington, 
    466 U.S. 668
    , 687, 
    104 S.Ct. 2052
    , 
    80 L.Ed.2d 674
     (1984). “First, the defendant must show that counsel’s
    performance was deficient. * * * Second, the defendant must show that the
    deficient performance prejudiced the defense.”        
    Id.
     “In evaluating counsel’s
    26
    January Term, 2024
    performance, ‘a court must indulge a strong presumption that counsel’s conduct
    falls within the wide range of reasonable professional assistance; that is, the
    defendant must overcome the presumption that, under the circumstances the
    challenged action “might be considered sound trial strategy.” ’ ” State v. Roush,
    10th Dist. Franklin No. 12AP-201, 
    2013-Ohio-3162
    , ¶ 37, quoting Strickland at
    689; Michel v. Louisiana, 
    350 U.S. 91
    , 101, 
    76 S.Ct. 158
    , 
    100 L.Ed. 83
     (1955). To
    show that a defendant has been prejudiced by counsel’s deficient performance, the
    defendant “must show that there is a reasonable probability that, but for counsel’s
    unprofessional errors, the result of the proceeding would have been different.”
    Strickland at 694; accord State v. Bradley, 
    42 Ohio St.3d 136
    , 
    538 N.E.2d 373
    (1989), paragraph three of the syllabus. “A reasonable probability is a probability
    sufficient to undermine confidence in the outcome.” Strickland at 694.
    {¶ 65} It is, at a minimum, questionable whether any reasonable counsel
    would have ignored or discarded so significant an opportunity as this to
    demonstrate the innocence of a client. A new trial would have permitted Brown’s
    counsel to fully examine the underpinnings of Smothers’s amateur investigation,
    which may have shown that there was no link at all between “Danny Buckley” on
    Letgo and Brown’s Facebook account—or better yet, may have identified the real
    “Danny Buckley.” Though effective assistance is not now before this court as a
    proposition of law, it was raised by Brown in the First District and was deemed
    moot by that court in favor of the Brady issue. See 
    2022-Ohio-2752
    , 
    198 N.E.3d 111
    , at ¶ 49, 69. The majority rightly remands this case to the First District for
    consideration of Brown’s remaining assignments of error, including this one. I
    write separately to point out that the revelations relating to how Brown was
    identified, particularly given his alibi evidence, do raise significant questions about
    the effectiveness of his representation.
    27
    SUPREME COURT OF OHIO
    B. First Proposition of Law—The Evidence Was Sufficient to Show that
    Brown Robbed Smothers
    {¶ 66} The parties here do not dispute that the man with a gun engaged in
    false advertising and communications with Smothers to lure her to bring $600 to
    the spot where he intended to (and did) steal the money. Minimally, this constitutes
    an attempted theft and/or fraud against Smothers. See, e.g., R.C. 2913.02; R.C.
    2913.05 (telecommunications fraud). Thus, the required “theft offense” predicate
    for a robbery conviction is satisfied. See R.C. 2911.02(A). The remaining question
    is whether the man with the gun, in the attempt or commission of the theft, inflicted,
    attempted to inflict, or threatened to inflict physical harm on Smothers. See R.C.
    2911.02(A). The officer who responded to the scene testified that Smothers and
    Bryant reported that the man with the gun “came to the passenger side of the car;
    brandished a black handgun; demanded the money; and demanded the money a
    second time while pointing the gun at both of the victims, * * * who were obviously
    very shaken up over it.” And Smothers herself testified that when she turned around
    after handing the money to Bryant, the man with the gun was standing close to
    Smothers.
    {¶ 67} In her testimony, Smothers contradicted the officer’s recounting
    insofar as she stated that the gun was never pointed at her and that the man with the
    gun instead pointed it at Bryant when he demanded the money. But whether or not
    the gun was ever pointed directly at Smothers, “ ‘viewing the evidence in a light
    most favorable to the prosecution,’ ” a “ ‘rational trier of fact could have found’ ”
    that the man with the gun implicitly threatened both women with physical harm,
    State v. Monroe, 
    105 Ohio St.3d 384
    , 
    2005-Ohio-2282
    , 
    827 N.E.2d 285
    , ¶ 47,
    quoting State v. Jenks, 
    61 Ohio St.3d 259
    , 
    574 N.E.2d 492
     (1991), at paragraph two
    of the syllabus, superseded by state constitutional amendment on other grounds as
    stated in State v. Smith, 
    80 Ohio St.3d 89
    , 
    102 N.E.2d 668
     (1997), fn. 4. I agree
    28
    January Term, 2024
    with the majority that Smothers was not a mere bystander—she was robbed along
    with Bryant.
    {¶ 68} As noted, I have grave doubts about whether the man with the gun
    was in fact Brown, but viewing the evidence in a light most favorable to the
    prosecution, a rational trier of fact could have credited the testimony of Bryant and
    Smothers that Brown was the man with the gun and that he robbed both women,
    see Monroe at ¶ 47. Thus, I concur in the majority’s reversal of the First District’s
    determination that the evidence was insufficient to convict Brown of the robbery of
    Smothers.
    IV. CONCLUSION
    {¶ 69} I agree with the majority’s conclusions that Brown’s counsel
    forfeited the due-process claim and that the evidence was sufficient to convict
    Brown of the robbery of Smothers. Accordingly, I concur in the court’s judgment
    reversing the judgment of the First District Court of Appeals and remanding the
    case to that court for it to consider, among other issues, whether Brown’s counsel
    was ineffective.
    {¶ 70} However, I write separately because, although her testimony is
    somewhat less than perfectly clear, it appears that Smothers conducted her own
    investigation the day after the robbery, found an advertisement for what she
    believed to be the same car, and used that vehicle to find Brown’s Facebook page.
    The upshot of that testimony is that Smothers may well have identified the wrong
    man because Brown was selling a similar but not identical car—a 1998 Toyota
    Corolla as opposed to a 2001 Toyota Corolla. The potential misidentification is
    further confirmed by the fact that Brown did not physically resemble the man with
    a gun in size (being 3 inches taller and 30 pounds heavier), was dressed differently
    on the day of the robbery, and had extensive tattoos, which neither victim had
    noticed on the man with the gun. That little was done to confirm or dispute the
    results of Smothers’s investigation and that they were used to create the lineup for
    29
    SUPREME COURT OF OHIO
    identification by the very same person who supplied Brown’s information should
    have been disclosed to Brown prior to trial; these facts were material to his defense
    in addition to his credible, documented alibi. It seems that Brown may actually be
    innocent but was impaired in his defense by ineffective assistance of counsel in the
    failure to seek a continuance or mistrial to investigate the information about
    Smothers’s investigation.
    {¶ 71} With respect to the sufficiency inquiry, I agree with the majority’s
    conclusion that the First District erred and that the evidence was sufficient to
    support Brown’s conviction for robbery. Smothers and Bryant testified that they
    were lured to bring money to the scene on the false promise of an automobile sale.
    That constitutes a theft offense. When they arrived with the money to purchase the
    car, they were met by a man with the gun demanding money, which they gave him.
    That constitutes robbery. Even with the credibility of the identification in question,
    under a sufficiency analysis, in which all inferences are drawn in favor of the
    prosecution, the identification of Brown was not insufficient.
    {¶ 72} With this explanation, I concur in the court’s judgment.
    STEWART, J., concurs in the foregoing opinion.
    ________________________
    Melissa A. Powers, Hamilton County Prosecuting Attorney, and Paula E.
    Adams, Assistant Prosecuting Attorney, for appellant.
    Michael J. Trapp, for appellee.
    Dave Yost, Ohio Attorney General, Michael J. Hendershot, Chief Deputy
    Solicitor General, and Zachery P. Keller, Deputy Solicitor General, urging reversal
    for amicus curiae Ohio Attorney General Dave Yost.
    Elizabeth R. Miller, Ohio Public Defender, and Addison Spriggs and
    Nicholas Allen, Assistant Public Defenders, urging affirmance for amicus curiae
    Ohio Public Defender.
    ________________________
    30
    

Document Info

Docket Number: 2022-1182

Citation Numbers: 2024 Ohio 749

Judges: DeWine, J.

Filed Date: 3/5/2024

Precedential Status: Precedential

Modified Date: 3/5/2024