[Cite as State v. Darmond, 2011-Ohio-6160.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                  Nos. 96373 and 96374




                                     STATE OF OHIO

                                                       PLAINTIFF-APPELLANT

                                                 vs.

                             DEMETRIUS DARMOND
                                                           DEFENDANT-APPELLEE




                                              JUDGMENT:
                                              AFFIRMED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CR-540709

        BEFORE:         Jones, J., Boyle, P.J., and Sweeney, J.

        RELEASED AND JOURNALIZED: December 1, 2011
ATTORNEYS FOR APPELLANT

William D. Mason
Cuyahoga County Prosecutor

BY: Matthew Waters
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Avenue
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Patricia J. Smith
4403 St. Clair Avenue
The Brownhoist Building
Cleveland, Ohio 44103

Jeffrey P. Hastings
50 Public Square
Suite 3300
Cleveland, Ohio 44113




LARRY A. JONES, J.:

       {¶ 1} Plaintiff-appellant, the state of Ohio, appeals from the trial court’s judgment

dismissing the case with prejudice for a discovery violation.     We affirm.

                                I. Procedural History and Facts

       {¶ 2} Defendants-appellees, Demetrius Darmond and Iris Oliver, were jointly
indicted in August 2010. Both defendants were charged with drug trafficking and drug

possession, and Darmond was additionally charged with possessing criminal tools and

endangering children.1 The charges stemmed from the controlled delivery of a FedEx

package containing marijuana to 16210 Huntmere, Cleveland, Ohio.

       {¶ 3} The defendants waived their right to a jury trial and the case proceeded to a

bench trial.    The state presented the testimony of Special Agent Patricia Stipek.        On

March 13, 2010, Stipek was involved with a package interdiction at a FedEx facility.

She retrieved three packages at that time, including the one destined for 16210 Huntmere;

it was addressed to “Tasha Mack.”          The packages were all destined for different

addresses.     They all had similar packaging.

       {¶ 4} Stipek obtained a search warrant for the package destined for Huntmere.

Inside was a package wrapped in happy birthday paper and an envelope; marijuana was in

the envelope.

       {¶ 5} On March 17, 2010, Stipek did another package interdiction at the same

FedEx facility and retrieved four packages, including the targeted one that was addressed

to “Sonya Byrd” at 16210 Huntmere.           Stipek testified that the four packages were

similar to the packages she had retrieved on March 13.

       {¶ 6} The special agent obtained a search warrant for the second package destined

for Huntmere.     The contents were similar to the first package destined for Huntmere — a


         Darmond had previously been under indictment in Case No. CR-535469 for the same
       1


charges. That case was dismissed without prejudice by the state on August 9, 2010, “for further
investigation.” The state re-indicted him in this case on August 11, 2010.
package wrapped in happy birthday paper and an envelope        with marijuana in it.

       {¶ 7} Stipek made a separate report for each of the seven packages, but with the

exception of the two Huntmere packages, did not reference the other packages.            The

record demonstrates that neither the state nor defense had knowledge of the other five

packages. Stipek did not have the additional reports with her at trial and was unable to

testify about any investigation relative to those packages.   Because of this “surprise,” the

defense moved to dismiss the case.     The court held the request in abeyance, allowed for

complete examination of Stipek, then reconsidered the defense request and granted it.

       {¶ 8} In dismissing the case, the trial court stated the excluded evidence “could be

inculpatory or exculpatory.”   The court rationalized its decision as follows:

       {¶ 9} “All seven of the boxes were very similar in nature and all were the same

box size.   All seven of them were addressed and came from either the Phoenix or

Tempe, Arizona area from a Kinko’s store.

       {¶ 10} “All of them were handwritten with the same handwriting.           Possibly the

inside packaging on some of them were not exactly the same, but all of them came in a

very similar packaging, birthday packaging, birthday cards, and so forth.

       {¶ 11} “To then relate these seven boxes together, [ ] I believe all the other

information should have been supplied, the reports, the addresses, the names, the

investigation, whether there were charges, and quite possibly maybe if there was an

indictment, which I don’t know if there was or wasn’t, and I don’t think anyone can speak

to that.
          {¶ 12} “* * * [D]id someone own up to a scheme that maybe would have been

information and evidence that could have been brought in here and testimony by another

person to exonerate the two individuals that were charged in this case?”

          {¶ 13} The state’s sole assigned error reads:   “The trial court abused its discretion

in declaring a mistrial and by dismissing the state’s case with prejudice due to an

inadvertent discovery violation.”

                                     II. Law and Analysis

          {¶ 14} Crim.R. 16 governs discovery in criminal cases and states that the purpose

of discovery is to “provide all parties in a criminal case with the information necessary for

a full and fair adjudication of the facts, to protect the integrity of the justice system and

the rights of defendants, and to protect the well-being of witnesses, victims, and society at

large.”     Crim.R. 16(A).      If a party fails to comply with Crim.R. 16’s discovery

requirements, a trial court “may order such party to permit the discovery or inspection,

grant a continuance, or prohibit the party from introducing into evidence the material not

disclosed, or it may make such other order as it deems just under the circumstances.”

Crim.R. 16(L). It is within the trial court’s sound discretion to decide what sanction to

impose for a discovery violation. Lakewood v. Papadelis (1987), 32 Ohio St.3d 1, 3,

511 N.E.2d 1138.        Therefore, a trial court’s discovery sanction will not be overturned

unless it was unreasonable, unconscionable, or arbitrary.          State v. Engle, 166 Ohio

App.3d 262, 2006-Ohio-1884, 850 N.E.2d 123, ¶7.

          {¶ 15} Citing Lakewood, the state contends that the trial court abused its discretion
by not imposing a less severe sanction than dismissal with prejudice.              This court

addressed the “least restrictive sanction” element of Lakewood in State v. Jones, 183 Ohio

App.3d 189, 2009-Ohio-2381, 916 N.E.2d 828, stating the following:

          {¶ 16} “The holding in Lakewood must be read in conjunction with its facts.       In

Lakewood, the defense failed to respond to the prosecution’s demand for discovery. At

trial, the state objected when the defense called its first witness, arguing that the state had

not been provided with a witness list. The trial court then excluded the testimony of all

defense witnesses as a sanction for the failure to respond to the state’s discovery request.

The defense attorney proffered the testimony of the two witnesses he was precluded from

calling.

          {¶ 17} “The Ohio Supreme Court explained that the excluded testimony was

material and relevant to the offense charged, and if believed, the defendant may have

been acquitted.      Consequently, the court concluded that the exclusions denied the

defendant his Sixth Amendment right to present a defense.          The court recognized that

the state has a compelling interest but explained that any infringement on a defendant’s

constitutional rights caused by a sanction must be afforded great weight.      The court held

that ‘a trial court must inquire into the circumstances surrounding a discovery rule

violation and, when deciding whether to impose a sanction, must impose the least severe

sanction that is consistent with the purpose of the rules of discovery.’ The court also

stated:    ‘We emphasize that the foregoing balancing test should not be construed to

mean that the exclusion of testimony or evidence is never a permissible sanction in a
criminal case.   It is only when exclusion acts to completely deny defendant his or her

constitutional right to present a defense that the sanction is impermissible.’” Jones at

¶10-11, quoting Lakewood at paragraph two of the syllabus and at ¶5.

       {¶ 18} In Jones, this court cited a Seventh Appellate District case, State v. Crespo,

Mahoning App. No. 03 MA 11, 2004-Ohio-1576, wherein the court held that “[c]ommon

sense dictates that the [holding in Lakewood] does not mean that a trial court must impose

the ‘least severe sanction’ in every case.    Otherwise, dismissal of an indictment could

never be an appropriate sanction as there will always be a sanction less severe.

Similarly, a jail term for contempt could be eliminated as an option because there are a

plethora of less severe sanctions available.” Crespo at ¶8; Jones at ¶12.      The Seventh

District further noted that a distinction exists in cases, unlike Lakewood, where the state

fails to provide discovery, as opposed to cases where the defendant violated the discovery

rules as in Lakewood.      Crespo at ¶11 (“Therefore, the holding in Lakewood is not

directly applicable in cases where sanctions are imposed upon the prosecution.”)

       {¶ 19} The state also contends that both it and the defense were surprised by the

additional evidence, and absent a finding by the trial court that the additional evidence

was exculpatory, and thus that the lack of knowledge was prejudicial to the defense, the

court abused its discretion.   The record is clear that both the prosecution and the defense

were surprised by the additional evidence, but the fact that the state was surprised did not

lessen the purposes of discovery, which in part, is to “protect the integrity of the justice

system and the rights of defendants.” Crim.R. 16(A). When potentially exculpatory
evidence is at issue, “the prosecutor may not hide behind the shield of innocence,

claiming that the police failed to advise him of such evidence.                  Whether the

non-disclosure is the responsibility of the officer or the prosecutor makes no difference.

It is the government’s failure that denies the accused the process due him.” State v.

Sullivan (Aug. 6, 1990), Tuscarawas App. No. 89AP120094, citing United States ex rel.

Smith v. Fairman (1985), 769 F.2d 386.

         {¶ 20} In regard to the nature of the evidence, that is, whether it was exculpatory or

inculpatory, we are not able to make that determination.       The trial court correctly stated

that the evidence could have been exculpatory or inculpatory. Whatever its nature, it

was discoverable, a point conceded by the state.

         {¶ 21} We are not persuaded by the state’s reliance on State v. King, Muskingum

App. No. CT2010-0010, 2010-Ohio-5701. In King, the defendant was charged with

theft.   In its opening statement, the state made reference to text messages sent by the

defendant to the victim without objection from the defense. During the defense’s voir

dire and opening statement, counsel several times stated that the defendant was going to

take the stand and tell her side of the story.        Defense counsel also stated that the

defendant had a prior theft conviction.

         {¶ 22} The state’s first witness to testify was the victim.     The victim testified

about the incident and also stated that after the incident the defendant sent her text

messages apologizing for the incident. The defense did not object while the victim was

testifying, but at the conclusion of the state’s direct examination of her, it alerted the court
that it had not received the text messages during discovery and requested a mistrial.      The

state acknowledged that it had committed “an oversight in the discovery process.”         Id. at

¶31.   The trial court granted the defense’s motion and dismissed the case with prejudice,

stating that the “act of the State hints toward intentional overreaching to gain an unfair

tactical advantage.”   Id. at ¶11.

       {¶ 23} The Fifth Appellate District found that the trial court abused its discretion.

Specifically, the court found there was no evidence that the state’s mistake was an

intentional oversight. The court also noted that the defense did not timely object. This

case differs from King.

       {¶ 24} In King, the evidence was inculpatory, while here it was not certain whether

the evidence was inculpatory or exculpatory. Moreover, further investigation into the

matter was likely not needed in King, whereas further investigation would have been

needed in this case. Additionally, the court here did not find that the state’s act was

intentional despite a lack of evidence on that.      Rather, the court here found that the

evidence was relevant evidence to which the defense was entitled for further

investigation, irrespective of how it came to be overlooked.

       {¶ 25} The record here evidences that the trial court gave careful and deliberate

consideration to the defense’s request for a mistrial.   “[T]he trial court is in far the better

position to monitor the criminal process.    When he elects to exercise discretion we are

well advised to recognize and honor it in the absence of error     of law.” Sullivan, supra,

citing State v. Everhart (July 23, 1990), Tuscarawas App. No. 89-AP-40036.
       {¶ 26} On the record before us, we cannot find that the trial court abused its

discretion, especially in light of the fact that the state had already indicted and dismissed

charges against Darmond for “further investigation,” and then two days later re-indicted

him and Oliver, his mother-in-law.      The state’s sole assignment of error is therefore

overruled.

       Judgment affirmed.

        It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




LARRY A. JONES, JUDGE

MARY J. BOYLE, P.J., and
JAMES J. SWEENEY, J., CONCUR
