[Cite as In re P.K., 2019-Ohio-2311.]


                                        COURT OF APPEALS
                                    GUERNSEY COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


IN THE MATTER OF: P.K.                       :       JUDGES:
                                             :       Hon. John W. Wise, P.J.
   ALLEGED DELINQUENT CHILD                  :       Hon. Craig R. Baldwin, J.
                                             :       Hon. Earle E. Wise, J.
                                             :
                                             :
                                             :       Case No. 19 CA 08
                                             :
                                             :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Guernsey County
                                                     Court of Common Pleas, Juvenile
                                                     Division, Case No. 18JA00437




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    June 10, 2019




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant P.K.

JAMES R. SKELTON                                     STEPHANIE L. CHURCH
MELISSA R. BRIGHT                                    Tribbie, Plummer, Church & LaPlante, LLC
Assistant Guernsey County                            139 West Eighth Street
Prosecuting Attorneys                                P.O. Box 640
627 Wheeling Avenue                                  Cambridge, Ohio 43725-0640
Cambridge, Ohio 43725
Guernsey County, Case No. 19 CA 08                                                  2

Baldwin, J.

       {¶1}   Appellant P.K. appeals from the March 4, 2019 Journal Entry of the

Guernsey County Court of Common Pleas, Juvenile Division.

                       STATEMENT OF THE FACTS AND CASE

       {¶2}   On November 5, 2018, a complaint was filed alleging that P.K. was a

delinquent child. The complaint alleged that P.K. had walked away from law enforcement

officers three times after being asked to come towards the officers, had pulled her hands

from the arresting officers, and had pulled her left hand free from handcuffs and that the

offense, if committed by an adult, would constitute a violation of R.C. 2921.31, obstructing

official business, a misdemeanor of the second degree. P.K. had run away from her

grandmother’s home and refused to return home. At the arraignment on December 10,

2018, a technical denial was entered by the trial court on behalf of P.K.

       {¶3}   On December 21, 2018, appellant’s counsel filed a Juv.R. 24 discovery

request. Appellee, acting through the Guernsey County Prosecutor’s Office, filed a

response to the request on January 4, 2019. The response included a 4 page report from

the Cambridge Police Department and the names of the two officers involved in the case.

No officer body camera recordings were provided.

       {¶4}   As memorialized in a letter dated January 17, 2019 from an Assistant

Prosecuting Attorney to appellant’s counsel, appellant’s counsel was advised that there

were no video recordings available for the incident involving P.K. Attached to the letter

was a copy of a text conversation between the Prosecuting Attorney’s Secretary and

Sergeant Gebhart of the Cambridge Police Department stating that there was no video.
Guernsey County, Case No. 19 CA 08                                                   3


       {¶5}   The trial court, as memorialized in a Journal Entry filed on January 22, 2019,

ordered that all discovery was to be completed within fourteen (14) days. On January 31,

2019, appellant P.K. filed a discovery compliance pursuant to Juv.R. 24 indicating that

the two officer body camera video recordings might be used at the trial in the matter.

       {¶6}   On February 11, 2019, appellant’s counsel filed a Motion to Dismiss or, in

the Alternative, Motion for Sanctions. Appellants’s counsel, in such motion, stated that

she had obtained the recordings on or about January 30, 2019 pursuant to a public

records request to the Cambridge Police Department. Counsel argued that appellee’s

failure to provide the recordings constituted a violation of the requirements of in Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and asked that the matter

be dismissed or other appropriate sanctions imposed. Appellee filed a memorandum, in

opposition to appellants’s motion on February 22, 2019 arguing that no Brady violation

had occurred because the recordings were not exculpatory and no prejudice had

occurred. Appellant’s counsel filed a reply on February 28, 2019.

       {¶7}   Pursuant to a Journal Entry filed on March 4, 2019, the trial court denied the

Motion to Dismiss, but granted the alternative Motion for Sanctions and ordered the

Guernsey County Prosecutor’s Office to pay the attorney fees of appellant’s attorney for

the time required to discover the body camera videos and the time spent preparing and

filing the Motion to Dismiss and reply. The trial court, in its Journal Entry, found that the

evidence had been suppressed by the State of Ohio, but that there had been no

suggestion that the evidence was willfully suppressed. The trial court stated, in relevant

part, as follows: “However, it does appear that a halfhearted effort was made to discover

evidence. It is well known that the Cambridge Police Department Officers have body
Guernsey County, Case No. 19 CA 08                                                    4


cameras on their person. It is also well known that they are to have cameras on when an

incident, stop, or investigation is taking place.” The trial court further found that P.K. was

not prejudiced because the videos were discovered by defense counsel fourteen days

prior to trial and that, therefore, P.K. was not denied due process. The trial court, in its

Journal Entry, further stated, in relevant part, as follows:

              However, having found that the alleged delinquent was not

       prejudiced does not excuse the State of Ohio’s lack of effort in this matter.

       Defense Counsel is an experienced lawyer and former prosecutor. She is

       aware of the policies of the various law enforcement agencies in this County

       and knows who to call to find information. A less experienced attorney may

       not know that information and could result in their clients not receiving the

       Due Process that they are entitled to under the laws of this Country.

       {¶8}   Appellant now appeals from the March 4, 2019 Journal Entry raising the

following assignment of error on appeal:

       {¶9}   “I. THE TRIAL COURT ERRED IN FINDING THAT NO BRADY VIOLATION

OCCURRED WHERE THE STATE OF OHIO, ACTING THROUGH THE GUERNSEY

COUNTY PROSECUTOR’S OFFICE, DENIED THE EXISTENCE OF VIDEO

RECORDINGS OF THE APPELLANT’S ARREST, WHICH VIDEOS WERE IN FACT

AVAILABLE AND WERE ACQUIRED BY APPELLANT PURSUANT TO A PUBLIC

RECORDS REQUEST.”

                                              I

       {¶10} Appellant, in her sole assignment of error, argues that the trial court erred

in finding that no Brady violation had occurred. We disagree.
Guernsey County, Case No. 19 CA 08                                                    5

       {¶11} Under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d

215(1963), the State violates a defendant's right to due process if it withholds evidence

that is favorable to the defense and material to the defendant's guilt or punishment. See

373 U.S., at 87. The Supreme Court has explained, “evidence is ‘material’ within the

meaning of Brady when there is a reasonable probability that, had the evidence been

disclosed, the result of the proceeding would have been different.” Cone v. Bell, 556 U.S.

449, 469–470, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009). A reasonable probability does

not mean that the defendant “would more likely than not have received a different verdict

with the evidence,” only that the likelihood of a different result is great enough to

“undermine [ ] confidence in the outcome of the trial.” Kyles v. Whitley, 514 U.S. 419, 434,

115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (internal quotation marks omitted).

       {¶12} In State v. Wickline, 50 Ohio St.3d 114, 552 N.E.2d 913(1990), the Ohio

Supreme Court rejected a claim that the state's failure to provide exculpatory information

to the defendant prior to trial was a reversible Brady violation for three reasons. First, the

Court noted that in United States v. Agurs , 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49

L.Ed.2d 342 (1976), the United States Supreme Court noted that the rule of Brady applies

to situations involving the discovery, after trial, of information which was known to the

prosecution but unknown to the defense. In Wickline, the alleged exculpatory records

were presented during the trial, and therefore no Brady violation existed. 50 Ohio St .3d

at 116, 552 N.E.2d 913. Accord, State v. Hanna, 95 Ohio St.3d 285, 2002-Ohio-2221,

767 N.E.2d 678, ¶ 82; State v. Green, 90 Ohio St.3d 352, 372, 2000-Ohio-182, 738

N.E.2d 1208.
Guernsey County, Case No. 19 CA 08                                                       6

       {¶13} Second, the court in Wickline noted that Crim. R. 16(E)(3), which is now

Crim.R. 16(L), provides:

              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 this rule or with

       an order issued pursuant to this 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.

       {¶14} The court held that the appellant could have pursued less drastic means

than seeking a new trial. Id. The appellant argued that no remedial order could have

ensured his right to a fair trial because the leading witness against him had already

testified. The court concluded that pursuant to Crim. R. 16(E)(3), the trial court was

empowered to order the return of the witness and make her available for continued cross-

examination. Id. at 117, 552 N.E.2d 913.

       {¶15} Finally, the Wickline court concluded that the appellant had failed to show

how the outcome of his trial would have been different had the materials been disclosed

prior to trial. Id. In determining whether the prosecution improperly suppressed evidence

favorable to an accused, the evidence is material only if there is a reasonable probability

that the result of the proceeding would have been different had the evidence been

disclosed to the defense. Id., citing State v. Johnston, 39 Ohio St.3d 48, 529 N.E.2d

898(1988), paragraph 5 of the syllabus. A reasonable probability is a probability sufficient

to undermine confidence in the outcome. Id.
Guernsey County, Case No. 19 CA 08                                                     7

       {¶16} “…Brady applies only to material discovered after trial because the

defendant, if he chooses to, can generally ensure that material discovered prior to or

during trial will be entered into evidence and is, thus, not substantially prejudiced.” State

v. Aldridge, 120 Ohio App.3d 122, 146, 697 N.E.2d 228(2nd Dist.1997).

       {¶17} Because, in the case sub juice, as noted by the trial court, the “videos in

question were discovered by defense counsel fourteen days prior to trial” and defense

counsel had time to prepare her case based on the videos, we find that appellant was not

prejudiced. We find, therefore, that the trial court did not err in finding no Brady violation.

       {¶18} Appellant’s sole assignment of error is, therefore, overruled.

       {¶19} Accordingly, the judgment of the Guernsey County Court of Common Pleas,

Juvenile Division is affirmed.

By: Baldwin, J.

Wise, John, P.J. and

Wise, Earle, J. concur.
