[Cite as Toledo v. Strickland, 2016-Ohio-8385.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


City of Toledo                                        Court of Appeals No. L-16-1001

        Appellant                                     Trial Court No. CRB-15-15186

v.

Dwayne Nigel Strickland                               DECISION AND JUDGMENT

        Appellee                                      Decided: December 23, 2016

                                                  *****

        David Toska, City of Toledo Chief Prosecutor, and
        Henry Schaefer, Assistant Prosecutor, for appellant.

        Lawrence A. Gold, for appellee.

                                                  *****

        OSOWIK, J.

        {¶ 1} This is a state appeal from a December 28, 2015 judgment of the Toledo

Municipal Court, striking the testimony of appellant’s sole witness in response to the

commission of a fundamental discovery violation by appellant. For the reasons set forth

below, this court affirms the judgment of the trial court.
         {¶ 2} Appellant, the city of Toledo, sets forth the following sole assignment of

error:

                1. THE TRIAL COURT ERRED WHEN IT STRUCK THE

         TEST[E]MONY OF OFFICER SCOTT.

         {¶ 3} The following undisputed facts are relevant to this appeal. On October 7,

2015, defendant Dwayne Strickland was operating a motor vehicle in the vicinity of

Central Avenue and Stickney Avenue in Toledo. The defendant encountered a Toledo

police officer at that location. The Toledo police officer was wearing a body camera

equipped with both video and audio at the time of the incident. The officer’s equipment

recorded the interaction with the defendant. The recordings have not been reviewed and

are not part of the record in this matter. The fact that the independent recordings, which

reflect the truth of what transpired, are not part of the record constitutes the fundamental

issue in this case.

         {¶ 4} The defendant maintains that he was subjected to police brutality during the

incident. Conversely, the officer maintains that the defendant resisted arrest. Again, the

incident was captured and recorded, with both audio and video, by the officer’s body

camera. The content of the recordings remains unknown.

         {¶ 5} On October 7, 2015, defendant was charged with one count of carrying a

concealed weapon, in violation of R.C. 2923.12, one count of resisting arrest, in violation

of R.C. 2921.33, along with several minor traffic offenses.




2.
       {¶ 6} On October 14, 2015, counsel was appointed to represent defendant on the

above-described pending cases. On December 1, 2015, counsel for defendant filed a

written request with appellant for discovery to be provided pursuant to the discovery

rules set forth in Crim.R. 16.

       {¶ 7} Crim.R. 16(B)(1) establishes in pertinent part, “Upon receipt of a written

demand for discovery * * * the prosecuting attorney shall provide copies or photographs,

or permit counsel for the defendant to copy or photograph * * * any written or recorded

statement by the defendant.”

       {¶ 8} In response to the defendant’s official discovery request, appellant provided

a copy of the written Toledo police report of the incident reflecting that the arresting

officer was wearing a body camera at the time of the arrest. No further discovery

materials were provided or offered to be made available for review and/or copying by

appellant.

       {¶ 9} On December 16, 2015, the matter proceeded to trial. Appellant furnished

the testimony of a single witness, the arresting officer who had worn the body camera

that recorded the events.

       {¶ 10} Given the failure of the discovery process to enable counsel for the

defendant to access and review the body cam video and audio to evaluate the proper

defense based upon the recordings, the defendant took the stand himself to refute the

testimony of the officer. During his testimony, the defendant stated to the court that the




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officer had been wearing a body camera at the time of the incident and that the court

could discover the truth by reviewing the recordings.

       {¶ 11} Following this revelation at trial by defendant, the trial court recessed to

determine the proper course of action. Ultimately, the trial court determined that

appellant had committed a discovery violation by failing to furnish the body cam video to

counsel for the defendant or take any actions which would have enabled the review of the

video by counsel for defendant prior to the defendant electing to take the witness stand in

his own defense. The trial court held in pertinent part, “The purpose of the criminal rules

is to prevent unfair surprise or trial by ambush. Even unintentional discovery violations

have adverse effect. And, in this case, the court feels compelled to strike the testimony of

the state’s sole witness. No other remedy would mitigate the harm done.” This appeal

ensued.

       {¶ 12} In the sole assignment of error, appellant maintains that the trial court erred

in striking the testimony of the arresting officer. In support, appellant suggests that the

fact that a copy of the police report reflecting that a body camera was worn by the officer

was provided in reply to defendant’s Crim.R. 16 discovery motion somehow negates the

possibility of a discovery violation in this case. We do not concur.

       {¶ 13} Crim.R. 16(B)(1) clearly mandates that any written or recorded statement

by a defendant shall [emphasis added] be provided or permission furnished for it to be

copied or photographed to counsel for the defendant. It is undisputed that this discovery

mandate did not occur in this case. It was not provided or made available to counsel for




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defendant prior to trial. Accordingly, the defendant elected to testify on his own behalf to

refute the officer’s testimony.

       {¶ 14} The Supreme Court of Ohio delineated in the seminal case of State v.

Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, that the factors which a

trial court must consider in crafting an appropriate discretionary discovery sanction or

remedy in response to a violation includes whether the violation was willful, whether the

review of the undisclosed materials would have benefited the defendant in preparation for

trial, and whether the defendant was prejudiced by the violation.

       {¶ 15} In conjunction with this, discovery disputes such as the one underlying this

case lie well within the discretion of the trial court and are evaluated pursuant to an abuse

of discretion standard of review. An abuse of discretion connotes more than a mere error

of law or judgment, it requires demonstration that the trial court’s decision was arbitrary,

unreasonable, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450

N.E.2d 1140 (1983).

       {¶ 16} In applying these relevant principles to this matter, we find that although

the record does not reflect that appellant’s failure to comply with Crim.R. 16 was

intentional, given the mention of the body camera in the written report that was drafted

by appellant’s sole witness and the fact that it was subsequently in appellant’s possession,

it can certainly be construed as neglectful.

       {¶ 17} Regardless, the record does reflect the determinative importance to the

defendant of having foreknowledge of the content of the video and audio recordings in




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preparation for trial and the resultant prejudice to the defendant of taking the witness

stand in his own defense without benefit of the foreknowledge of the content of the video

and audio recordings.

       {¶ 18} Lastly, we note that it is not persuasive for appellant to suggest that

requiring appellant to have taken some action in either providing a copy of the video to

the defense or offering arrangements for the video to be inspected and copied by the

defense somehow constitutes mandating appellant to conduct “hand holding” of appellee

in a scenario in which the recordings were made by appellant’s sole witness, were

referenced in the report created by that witness, is the property of appellant and

appellant’s witness, and is fundamental to the truth of the matter.

       {¶ 19} Given these facts and circumstances, we find that appellant has failed to

demonstrate that the disputed trial court discovery sanction in response to appellant’s

Crim.R. 16 violation was arbitrary, unreasonable or unconscionable. As such, we find

appellant’s sole assignment of error not well-taken.

       {¶ 20} Wherefore, the judgment of the Toledo Municipal Court is hereby

affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.


                                                                         Judgment affirmed.




6.
                                                                      Toledo v. Strickland
                                                                      C.A. No. L-16-1001




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Thomas J. Osowik, J.                                       JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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