The Supreme Court of Ohio today affirmed the robbery convictions of a Cincinnati man who posted a used car for sale on social media to lure two women to a location.  

The Supreme Court reversed a First District Court of Appeals decision that granted Rickey Brown a new trial for his robbery charges. The First District tossed out one of the trial court’s convictions, finding that Brown could not be charged with robbing the woman who was not holding the money. The appeals court also ruled a new trial was needed because the prosecution failed to turn over key evidence to Brown.

In the Supreme Court’s majority opinion, Justice R. Patrick DeWine wrote that the First District misapplied the state robbery law, and Brown was correctly convicted of robbing them both, even if only one had money in her hand. Additionally, the Court found that Brown did not contest the use of the key evidence during the trial and so he forfeited his right to appeal the issue.

Justice DeWine explained that when Brown learned at trial that the victims assisted the police by finding online photos used to identify him as the robber, his attorneys did not ask for a continuance or a mistrial. Because Brown’s attorney instead tried to discredit the investigation, Brown waived his right to claim that the prosecutor’s failure to disclose the evidence resulted in an unfair trial, the Court ruled.

Chief Justice Sharon L. Kennedy and Justice Michael P. Donnelly joined Justice DeWine’s opinion. Twelfth District Court of Appeals Judge Mike Powell, sitting for Justice Joseph T. Deters, also joined the opinion.

In a concurring opinion, Justice Jennifer Brunner agreed with the majority that if Brown was the person who robbed the two women, the trial court proceedings were fair and proved he committed two robberies. However, she wrote that Brown has a viable claim that he was wrongly identified by the women through their own internet sleuthing and the First District should again consider ordering a new trial for Brown.

Justice Melody Stewart joined Justice Brunner’s opinion.

In a separate concurring opinion, Justice Patrick F. Fischer joined Justice DeWine’s opinion and wrote separately to disagree with portions of Justice  Brunner’s concurring opinion. Justice Fischer argued that Justice Brunner issued an “advisory opinion” regarding other legal arguments raised by Brown, and her opinion has the harmful potential to influence the First District when it reconsiders the case.

Victims Trace Suspect From Sales App to Facebook
In May 2020, Holly Smothers used the online app Letgo to arrange to buy a 2001 Toyota Corolla for $600. The app identified the seller as Danny Buckley. To meet the seller, Smothers asked Sharlene Bryant to join her. Bryant was familiar with the area where the deal was to take place and drove Smothers to that location.

When the two arrived, the seller walked up to the passenger side of the car. He told Smothers he was going to show her the Corolla. As Smothers went to look at the car, she handed Bryant the money to hold. Smothers was standing next to the seller when he drew a handgun and demanded that Bryant hand over the $600. He then fled.

The women called the police. The next day, Smothers opened the Letgo app and found an email address connected with the Danny Buckley account. She then found a Facebook account associated with the same email address.

Smothers took the information and photographs of the man from the Facebook account to a Cincinnati Police Department detective. Using the Facebook information, the police identified the owner of the Facebook account as Rickey Brown.

Woman Identify Suspect Through Photo Lineups
The police arranged for two photo lineups and for each victim to separately review the lineups. Each lineup included a photo of Brown, but the pictures were different than the ones Smothers had found on Facebook. Each woman identified Brown as the man who robbed them.

Brown was indicted on one count of robbery for robbing Smothers, and one count of aggravated robbery for robbing Bryant. He was also indicted for illegally having a weapon. Brown waived his right to a jury trial, opting instead for a bench trial before a judge.

During discovery, the Facebook photos were disclosed to Brown’s defense attorney, but the Hamilton County Prosecutor’s Office did not explain how it obtained them. The police knew that Smothers found the photos through her independent investigation. But at the time the photos were provided to Brown, the prosecutors handling the case did not know how the police obtained the photos. It was not until the trial that the prosecutors learned that Smothers gave the photos to the police.

Defense Sought to Discredit Investigation
At the trial, questioning from the prosecutors revealed Smothers’ detective work. Instead of asking the judge to declare a mistrial or grant a continuance to learn more about the exchange of information between the victims and police, Brown’s attorney cross-examined Smothers and the police officers. The attorney attempted to discredit the witnesses and the police investigation, arguing that the police relied more on the Facebook photos obtained by Smothers than by conducting their own investigation into the crime.

The trial court found Brown guilty of robbing both women, as well as an illegal gun charge. Two weeks later, Brown requested a new trial.

Brown made several arguments to the trial judge, including that the prosecution committed a “Brady violation.” The U.S. Supreme Court in its 1963 Brady v. Maryland decision held that the prosecution violates an accused’s constitutional due process rights when it withholds from the defendant evidence that is favorable to his defense. Brown maintained the prosecutors violated Brady by not disclosing prior to the trial that Smothers conducted her own investigation and by not revealing that she and Bryant viewed Facebook photos before the police photo lineup.

The trial court denied the new trial request, finding that Brown’s attorney conducted a “rigorous cross examination” of the witnesses. The trial judge concluded that an earlier discovery of the information would not have changed the outcome.

Brown appealed to the First District, which dismissed the robbery charge as to Smothers. That court reasoned that even though the money in Bryant’s hand belonged to Smothers, Smothers did not give any money to Brown under the threat of harm. The First District also reversed the finding that the prosecutors improperly withheld evidence favorable to Brown’s defense. It then ordered a new trial. The First District did not consider any of Brown’s other arguments, including whether he received the ineffective assistance of counsel.

The prosecutor’s office appealed the decision to the Supreme Court.

Supreme Court Examined Robbery Law
Justice DeWine explained that Brown was convicted of robbery under R.C. 2911.02(A)(2), which states that no person when committing theft or fleeing after a theft shall inflict or “threaten to inflict physical harm on another.”

The First District reasoned that Smothers was not a victim of theft because she had handed Bryant the money. It concluded that the victim of the theft and the person threatened had to be the same person. The Supreme Court of Ohio rejected “the court of appeals’ gloss on the statute [a]s unsupported by the statutory language.” It found that “[t]here is no requirement in the statute that the theft victim be the same person who was threatened.” Justice DeWine observed that  “[i]n 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.”

The Supreme Court further noted that Smothers was the owner of the stolen cash and the intended target of the theft.

“[Smothers] arranged the car purchase, it was her money that was stolen, and she was next to Brown when he pointed the 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,” the opinion stated.

The Court concluded that trial court correctly found Brown guilty of robbing Smothers.

Claim of Withholding Evidence Analyzed
The government commits a Brady violation if it willfully or inadvertently withholds evidence favorable to the defense when there is a “reasonable probability” of different outcome if the evidence had been provided.

Justice DeWine explained that Brady violations occur when the withheld information is discovered after the trial, and the accused can then argue for a new trial. The Court explained that it did not need to decide if a Brady claim could be premised on information that was disclosed during trial because Brown forfeited any such claim by failing to ask for a continuance or mistrial.

The opinion explained that trial judges have many tools to address fairness when evidence is discovered mid-trial. However, the opinion explained, the accused must call the issue to the court’s attention, and request that the trial court act. Brown did not object during the trial to the use of the Facebook photos, and cannot now claim a Brady violation, the Court concluded.

The Supreme Court remanded the case to the First District to consider Brown’s other legal arguments.

Concurrence Suggests Wrong Person Charged
In her concurrence, Justice Brunner agreed with the majority’s assessment of the robbery convictions and the conclusion that the prosecution did not commit a Brady violation. She wrote to discuss the circumstances leading to Brown’s conviction and to question whether his legal representation was ineffective.

The concurrence noted that Smothers’ explanation of how she tracked down Brown was unclear. She saw the 2001 Corolla advertised on Letgo and traced it to the name Danny Buckley. She described the robber as 5 feet, 5 inches tall, weighing about 120 pounds, and wearing shorts. Brown had listed a 1998 Corolla for sale on Letgo, and he was 5 feet, 8 inches tall and weighed 150 pounds at the time. He was also seen wearing jeans that day, the concurrence noted.

Justice Brunner wrote that Smothers went back to Letgo the day after the robbery. It is possible that she confused the car she was searching and landed on to be the car that Brown was selling, the opinion stated. Brown presented witnesses who testified that on the day of the crime, he was with friends staying at a rental in downtown Cincinnati and had receipts showing he was shopping around the time of the incident.

Justice Brunner wrote that it is possible that Brown is not Danny Buckley and is not the person who robbed the women. She noted that the First District should consider that Brown’s attorney was ineffective by failing to convey to the trial court the discrepancy in the criminal investigation.

2022-1182. State v. Brown, Slip Opinion No. 2024-Ohio-749.

View oral argument video of this case.

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