[Cite as State v. Greene, 2018-Ohio-3032.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 28660
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE BRANDON C. GREENE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR-2016-07-2472
DECISION AND JOURNAL ENTRY
Dated: August 1, 2018
TEODOSIO, Judge.
{¶1} Defendant-Appellant, Brandon Greene, appeals from his convictions in the
Summit County Court of Common Pleas. This Court affirms in part and reverses in part.
I.
{¶2} Mr. Greene is the cousin of C.G., the victim in this matter. One Sunday morning,
C.G. drove to the house of Mr. Greene’s mother (i.e., C.G.’s aunt) to speak with her about a
familial matter. The two had engaged in a heated exchange several days earlier when C.G. had
accused his other aunt, R.G., of pilfering items from his deceased father’s house. On his Sunday
morning visit, C.G. intended to address the disagreement and clear the air in light of his father’s
impending funeral.
{¶3} Mr. Greene’s mother was standing in her garage when C.G. arrived, parked his
car at the bottom of her driveway, and walked up to her. The two spoke briefly with accounts
varying as to whether their exchange was peaceful. At its conclusion, C.G. turned to leave and 2
began walking back to his car. He stopped partway, however, because Mr. Greene emerged
from the house and confronted him. Accounts varied with respect to who was present for their
exchange. According to C.G., Mr. Greene was accompanied by his aunt, R.G., and his ex-
girlfriend, B.W. Others indicated that B.W. remained in the house during the confrontation.
{¶4} As a result of the confrontation between Mr. Greene and C.G., C.G. sustained a
gunshot wound to his abdomen and fell to the ground. C.G. testified at trial that Mr. Greene shot
him. Likewise, while receiving treatment at the hospital, he told several different police officers
that Mr. Greene had shot him. He admitted, however, that in between the time of his initial
identification and his trial testimony to the same effect, he changed his statement and told the
prosecutor’s office that R.G. had shot him. By that point in time, R.G. had passed away, and
other members of their family, including Mr. Greene’s mother, were claiming that R.G. had shot
C.G. When naming Mr. Greene as the shooter at trial, C.G. indicated that he was hesitant to
implicate his cousin, but had decided to be truthful in the end.
{¶5} C.G. did not see what happened to the gun that Mr. Greene used to shoot him, but
a nearby neighbor saw what happened after the gunshot rang out. Specifically, the neighbor
called 911 and reported that he saw a black male crawling on the ground and a second black
male with a gun. He then saw a black female in a long-sleeve gray shirt take the gun from the
second black male, run into the backyard, and hide the gun. When the police investigated the
wooded area at the back of the property, they found the gun used to shoot C.G. There was
testimony that Mr. Greene’s ex-girlfriend, B.W., matched the description of the female that the
neighbor saw hiding the gun.
{¶6} A grand jury indicted Mr. Greene on two counts of felonious assault and one
count of having a weapon under disability. Both felonious assault counts also carried an 3
attendant firearm specification and a repeat violent offender specification. A jury heard all of
Mr. Greene’s charges and specifications with the exception of his repeat violent offender
specifications. Mr. Greene elected to try those specifications to the bench. Accordingly, after
the jury found him guilty on all counts, the court heard evidence on the repeat violent offender
specifications. The court then found that Mr. Greene was a repeat violent offender.
{¶7} The court determined that Mr. Greene’s felonious assault counts, as well as the
specifications linked to those counts, were allied offenses of similar import. Consequently, it
merged his felonious assault counts and their attendant specifications for purposes of sentencing.
The court then sentenced Mr. Greene to a total of 15 years in prison.
{¶8} Mr. Greene now appeals from his convictions and raises two assignments of error
for our review.
II.
ASSIGNMENT OF ERROR ONE
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT ALLOWED A WITNESS TO TESTIFY AS AN EXPERT ABOUT “INNER- FAMILY VIOLENT SITUATIONS” AND “FAMILY DYNAMICS” IN VIOLATION OF CRIM.R. 16(K).
{¶9} In his first assignment of error, Mr. Greene argues that the trial court erred when
it allowed a detective to testify as an expert in the area of inner-family conflicts and family
dynamics. He argues that the State willfully violated Crim.R. 16(K) when it elicited that
testimony in the absence of a written report and advance notice to him, so the court ought to have
excluded it. Upon review, we reject his argument.
{¶10} Criminal Rule 16(K) provides, in relevant part, that
An expert witness for either side shall prepare a written report summarizing the expert witness’s testimony, findings, analysis, conclusions, or opinion, and shall include a summary of the expert’s qualifications. The written report and 4
summary of qualifications shall be subject to disclosure under this rule no later than twenty-one days prior to trial * * *. Failure to disclose the written report to opposing counsel shall preclude the expert’s testimony at trial.
By its own terms, the rule only applies to expert witnesses. See Crim.R. 16(K). Moreover,
prosecutorial violations of the rule “are reversible only when there is a showing that: (1) the
prosecution’s failure to disclose was a willful violation of the rule; (2) knowledge of the
information would have benefited the accused in the preparation of the defense; and (3) the
accused suffered some prejudicial effect.” State v. Sadeghi, 9th Dist. Wayne No. 14AP0051,
2016-Ohio-744, ¶ 16.
{¶11} This Court has recognized that “[a] lay witness may offer opinions and inferences
provided they are both rationally based on his perception and helpful to the jury’s understanding
of the testimony or determination of a fact in issue.” State v. Morgan, 9th Dist. Medina No.
07CA0124-M, 2008-Ohio-5530, ¶ 30, citing Evid.R. 701. Accord State v. Klein, 9th Dist.
Summit No. 26573, 2013-Ohio-3514, ¶ 18-19.
For example, a police officer who has had occasion to observe intoxicated individuals may testify, without being qualified as an expert, that an individual with whom he or she interacted was intoxicated. See Morgan at ¶ 30. Likewise, an officer who has knowledge of the methamphetamine production process and sees various items of paraphernalia seized from a suspect’s home may testify, without being qualified as an expert, that the home contained a methamphetamine lab. See State v. Williams, 9th Dist. Summit No. 25716, 2011-Ohio-6604, ¶ 11. In both instances, the officer’s testimony is based on his or her own perception and is “helpful to the jury’s understanding of the testimony or determination of a fact in issue.” Morgan at ¶ 30. See also Williams at ¶ 11.
State v. McCoy, 9th Dist. Summit No. 28103, 2017-Ohio-4163, ¶ 29.
{¶12} At trial, the State presented the testimony of Detective Bertina King. Detective
King testified that she had known C.G. his entire life because his mother was her best friend.
When she learned that he had been shot and was asking for her at the hospital, she went to see
him.
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. Greene, 2018-Ohio-3032.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 28660
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE BRANDON C. GREENE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR-2016-07-2472
DECISION AND JOURNAL ENTRY
Dated: August 1, 2018
TEODOSIO, Judge.
{¶1} Defendant-Appellant, Brandon Greene, appeals from his convictions in the
Summit County Court of Common Pleas. This Court affirms in part and reverses in part.
I.
{¶2} Mr. Greene is the cousin of C.G., the victim in this matter. One Sunday morning,
C.G. drove to the house of Mr. Greene’s mother (i.e., C.G.’s aunt) to speak with her about a
familial matter. The two had engaged in a heated exchange several days earlier when C.G. had
accused his other aunt, R.G., of pilfering items from his deceased father’s house. On his Sunday
morning visit, C.G. intended to address the disagreement and clear the air in light of his father’s
impending funeral.
{¶3} Mr. Greene’s mother was standing in her garage when C.G. arrived, parked his
car at the bottom of her driveway, and walked up to her. The two spoke briefly with accounts
varying as to whether their exchange was peaceful. At its conclusion, C.G. turned to leave and 2
began walking back to his car. He stopped partway, however, because Mr. Greene emerged
from the house and confronted him. Accounts varied with respect to who was present for their
exchange. According to C.G., Mr. Greene was accompanied by his aunt, R.G., and his ex-
girlfriend, B.W. Others indicated that B.W. remained in the house during the confrontation.
{¶4} As a result of the confrontation between Mr. Greene and C.G., C.G. sustained a
gunshot wound to his abdomen and fell to the ground. C.G. testified at trial that Mr. Greene shot
him. Likewise, while receiving treatment at the hospital, he told several different police officers
that Mr. Greene had shot him. He admitted, however, that in between the time of his initial
identification and his trial testimony to the same effect, he changed his statement and told the
prosecutor’s office that R.G. had shot him. By that point in time, R.G. had passed away, and
other members of their family, including Mr. Greene’s mother, were claiming that R.G. had shot
C.G. When naming Mr. Greene as the shooter at trial, C.G. indicated that he was hesitant to
implicate his cousin, but had decided to be truthful in the end.
{¶5} C.G. did not see what happened to the gun that Mr. Greene used to shoot him, but
a nearby neighbor saw what happened after the gunshot rang out. Specifically, the neighbor
called 911 and reported that he saw a black male crawling on the ground and a second black
male with a gun. He then saw a black female in a long-sleeve gray shirt take the gun from the
second black male, run into the backyard, and hide the gun. When the police investigated the
wooded area at the back of the property, they found the gun used to shoot C.G. There was
testimony that Mr. Greene’s ex-girlfriend, B.W., matched the description of the female that the
neighbor saw hiding the gun.
{¶6} A grand jury indicted Mr. Greene on two counts of felonious assault and one
count of having a weapon under disability. Both felonious assault counts also carried an 3
attendant firearm specification and a repeat violent offender specification. A jury heard all of
Mr. Greene’s charges and specifications with the exception of his repeat violent offender
specifications. Mr. Greene elected to try those specifications to the bench. Accordingly, after
the jury found him guilty on all counts, the court heard evidence on the repeat violent offender
specifications. The court then found that Mr. Greene was a repeat violent offender.
{¶7} The court determined that Mr. Greene’s felonious assault counts, as well as the
specifications linked to those counts, were allied offenses of similar import. Consequently, it
merged his felonious assault counts and their attendant specifications for purposes of sentencing.
The court then sentenced Mr. Greene to a total of 15 years in prison.
{¶8} Mr. Greene now appeals from his convictions and raises two assignments of error
for our review.
II.
ASSIGNMENT OF ERROR ONE
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT ALLOWED A WITNESS TO TESTIFY AS AN EXPERT ABOUT “INNER- FAMILY VIOLENT SITUATIONS” AND “FAMILY DYNAMICS” IN VIOLATION OF CRIM.R. 16(K).
{¶9} In his first assignment of error, Mr. Greene argues that the trial court erred when
it allowed a detective to testify as an expert in the area of inner-family conflicts and family
dynamics. He argues that the State willfully violated Crim.R. 16(K) when it elicited that
testimony in the absence of a written report and advance notice to him, so the court ought to have
excluded it. Upon review, we reject his argument.
{¶10} Criminal Rule 16(K) provides, in relevant part, that
An expert witness for either side shall prepare a written report summarizing the expert witness’s testimony, findings, analysis, conclusions, or opinion, and shall include a summary of the expert’s qualifications. The written report and 4
summary of qualifications shall be subject to disclosure under this rule no later than twenty-one days prior to trial * * *. Failure to disclose the written report to opposing counsel shall preclude the expert’s testimony at trial.
By its own terms, the rule only applies to expert witnesses. See Crim.R. 16(K). Moreover,
prosecutorial violations of the rule “are reversible only when there is a showing that: (1) the
prosecution’s failure to disclose was a willful violation of the rule; (2) knowledge of the
information would have benefited the accused in the preparation of the defense; and (3) the
accused suffered some prejudicial effect.” State v. Sadeghi, 9th Dist. Wayne No. 14AP0051,
2016-Ohio-744, ¶ 16.
{¶11} This Court has recognized that “[a] lay witness may offer opinions and inferences
provided they are both rationally based on his perception and helpful to the jury’s understanding
of the testimony or determination of a fact in issue.” State v. Morgan, 9th Dist. Medina No.
07CA0124-M, 2008-Ohio-5530, ¶ 30, citing Evid.R. 701. Accord State v. Klein, 9th Dist.
Summit No. 26573, 2013-Ohio-3514, ¶ 18-19.
For example, a police officer who has had occasion to observe intoxicated individuals may testify, without being qualified as an expert, that an individual with whom he or she interacted was intoxicated. See Morgan at ¶ 30. Likewise, an officer who has knowledge of the methamphetamine production process and sees various items of paraphernalia seized from a suspect’s home may testify, without being qualified as an expert, that the home contained a methamphetamine lab. See State v. Williams, 9th Dist. Summit No. 25716, 2011-Ohio-6604, ¶ 11. In both instances, the officer’s testimony is based on his or her own perception and is “helpful to the jury’s understanding of the testimony or determination of a fact in issue.” Morgan at ¶ 30. See also Williams at ¶ 11.
State v. McCoy, 9th Dist. Summit No. 28103, 2017-Ohio-4163, ¶ 29.
{¶12} At trial, the State presented the testimony of Detective Bertina King. Detective
King testified that she had known C.G. his entire life because his mother was her best friend.
When she learned that he had been shot and was asking for her at the hospital, she went to see
him. She spoke with him that evening and, though she was off duty, she recorded their 5
conversation when he said he wanted to make a statement. While speaking with Detective King,
C.G. stated that Mr. Greene had shot him. He also stated that both R.G. and B.W. were present
at the time of the shooting, but Mr. Greene was the one with the gun.
{¶13} During her direct examination, the prosecutor asked Detective King whether, in
light of her education and 25 years of experience as a police officer, she was familiar with
“inner-family violent situations.” The detective responded that she was very familiar with those
types of situations and that officers constantly have to take into consideration how “family
dynamics” can affect an investigation. The prosecutor then asked her whether, in those
situations, people are always immediately forthcoming with the police. Over objection,
Detective King testified that officers expect most people in those situations to either not tell the
truth immediately, to be forthcoming only about certain details, or to change their statement over
the course of an investigation. She agreed that victims might later change their statements
because, as time goes on, they recognize that they and their assailant are “still family.”
{¶14} Mr. Greene argues that the court erred by admitting Detective King’s testimony
regarding “inner-family violent situations” because it amounted to an expert opinion. Because
the detective testified as an expert, he argues, he was entitled to advance notice and a written
summary of her opinion, pursuant to Crim.R. 16(K). He asserts that he was prejudiced by the
admission of her opinion because it bolstered C.G.’s testimony. He notes that, before trial, C.G.
gave conflicting accounts of who shot him. He argues that Detective King’s improper testimony
helped the State explain C.G.’s contradiction.
{¶15} Assuming without deciding that Detective King improperly testified as an expert,
Mr. Green has not shown that her testimony prejudiced the result in this matter. See McCoy,
2017-Ohio-4163, at ¶ 30. Multiple witnesses testified that C.G. independently told them that Mr. 6
Greene was the shooter. Those witnesses included Detective King, Officer David Zarembka,
Detective Larry Rhodaback, and Detective Anthony Sutton, the lead investigator in this matter.
Detective Sutton also spoke with Mr. Greene two separate times after the shooting. The first
time, Mr. Greene stated that C.G. had a gun in his waistband and, when he rushed C.G., the gun
went off. The second time, however, Mr. Greene admitted that he brought the gun outside with
him and, when he tussled with C.G., the gun went off. There was evidence that C.G. and Mr.
Greene were the only two black males at the scene of the shooting and that the neighbor who
called 911 specifically stated that he saw one of the black males holding the gun while the other
was crawling on the ground. The jury also heard testimony that a female who matched the
description of Mr. Greene’s ex-girlfriend then attempted to conceal the gun while Mr. Greene
fled the scene. There was a wealth of evidence in the record from which the jury could have
concluded that Mr. Greene was the individual who shot C.G. Thus, even assuming Detective
King improperly testified as an expert, Mr. Greene has not shown that her testimony prejudiced
the result in this matter. See id. Mr. Greene’s first assignment of error is overruled.
ASSIGNMENT OF ERROR TWO
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN SENTENCING MR. GREENE TO A MANDATORY PERIOD OF FIVE YEARS OF POST[-]RELEASE CONTROL.
{¶16} In his second assignment of error, Mr. Greene argues that the trial court erred
when it sentenced him to five years of mandatory post-release control. He argues, and the State
concedes, that he was only subject to three years of mandatory post-release control. Upon
review, we agree.
{¶17} “‘[T]o fulfill the requirements of the post[-]release-control-sentencing statutes, *
* * a trial court must provide statutorily compliant notification to a defendant regarding post[- 7
]release control at the time of sentencing * * *.’” State v. Lindsay, 9th Dist. Lorain No.
17CA011206, 2018-Ohio-2871, ¶ 10, quoting State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-
1111, ¶ 18. Specifically, the court must (1) advise the defendant at the sentencing hearing of his
post-release control obligation and the consequences for violating it, and (2) incorporate its
notification in the sentencing entry. Qualls at ¶ 18-19. “When a judge fails to properly impose
statutorily mandated post[-]release control as part of a defendant’s sentence, the post[-]release[
]control sanction is void.” State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, paragraph
two of the syllabus.
{¶18} Mr. Greene was convicted of felonious assault, a second-degree felony, and
having a weapon under disability, a third-degree felony. The trial court orally notified him that
he was subject to five years of mandatory post-release control and incorporated that five-year
term in the sentencing entry. By statute, however, Mr. Greene was only subject to three years of
mandatory post-release control for his second-degree felony. See R.C. 2967.28(B)(2); State v.
Kracker, 9th Dist. Summit No. 25315, 2010-Ohio-5329, ¶ 6, citing R.C. 2967.28(F)(4)(c).
Because the court failed to properly impose post-release control upon him, that portion of his
sentence is void, see Holdcroft at paragraph two of the syllabus, and he “is entitled to a new
sentencing hearing limited to the proper imposition of post-release control.” Lindsay at ¶ 11. As
such, Mr. Greene’s second assignment of error is sustained.
III.
{¶19} Mr. Greene’s first assignment of error is overruled, and his second assignment of
error is sustained. The judgment of the Summit County Court of Common Pleas is affirmed in
part, reversed in part, and the cause is remanded to the trial court to conduct a new sentencing
hearing limited to the proper imposition of post-release control. 8
Judgment affirmed in part, reversed in part, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
THOMAS A. TEODOSIO FOR THE COURT
SCHAFER, P. J. CARR, J. CONCUR.
APPEARANCES:
NEIL P. AGARWAL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.