The Akron Legal News

Login | August 19, 2018

11th District vacates home invasion appellant’s convictions due to unfair prejudice

TRACEY BLAIR
Legal News Reporter

Published: February 8, 2018

A home invasion defendant was denied a fair trial in an Ashtabula County court because prejudicial other acts were admitted, according to the 11th District Court of Appeals.

Brianna Bernard appealed her convictions for aggravated robbery, aggravated burglary, felonious assault and kidnapping.

She was sentenced to eight years in prison.

Bernard was accused of being the getaway driver in a crime involving three separate victims, Heather Marx; Marx’s boyfriend, Matthew Carnes, and Abigail Grubbs, Marx’s friend and babysitter.

Case summary shows that Marx and her young son were inside her Conneaut apartment on Jan. 26, 2014 with her son’s friend and Grubbs.

Marx left later to pick up Carnes. When they returned to a dark apartment, Marx was hit on the head several times by one of two mask-wearing men with handguns. When she awoke from passing out, she had been tied up with belts and the men were gone.

Marx’s phone and car keys were missing.

Carnes and Grubbs were also injured.

There were no signs of foul play.

Police followed footprints in the snow to a parking lot. A cigarette butt and napkin cutting on the ground were sent for testing. The DNA on the items was later found to be consistent with Bernard’s.

The next day, officers were dispatched to the scene of a double murder in Ashtabula. Bernard was named as a suspect in that case, plus another nearby crime.

At her home invasion trial, the state was permitted to present evidence of other home invasions in which Bernard was the getaway driver.

Bernard argued that there were several differences between the cases, the parties involved and the conduct alleged in each case.

The appellant did not testify or present any witnesses at trial.

The state was allowed to try Bernard and co-defendant Marcus Lashley together, despite her argument that their defenses would confuse the jury at her expense.

Lashley was acquitted of all charges.

Writing for the court, 11th District Judge Colleen Mary O’Toole noted the only evidence tying Bernard to the crimes in the Marx case was the DNA profile from the parking lot items.

“The jury heard evidence of other horrific crimes, but not appellant’s acts,” Judge O’Toole stated. “… The trail in the snow led to a parking lot with some tire tracks and what appeared to be the contents of an ashtray emptied on the ground. The footprints in the snow were not tied to any one person or pair of shoes. Also, no one saw who made the footprints. Appellant did not present the anticipated defense of ignorance.”

Eleventh District Judge Timothy P. Cannon concurred that Bernard’s convictions should be reversed and vacated.

Appellate Judge Cynthia Westcott Rice concurred that the trial court erred by allowing the state to introduce other acts evidence. She dissented in part, however, stating the case should be remanded for a new trial instead of vacated.

Judge Rice cited State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, and Lockhart v. Nelson, 488 U.S. 33 (1988), which held that the Double Jeopardy Clause does not preclude retrial when evidence at trial is determined to have been improperly admitted on appeal.

The case is cited State v. Bernard, 2018-Ohio-351.


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