[Cite as State v. Thomas, 2018-Ohio-3768.]



             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                  BELMONT COUNTY

                                         STATE OF OHIO,

                                             Plaintiff-Appellee,

                                                     v.

                              JOHN ANTHONY THOMAS, SR.,

                                       Defendant-Appellant.


                       OPINION AND JUDGMENT ENTRY
                                        Case No. 17 BE 0028


                                   Criminal Appeal from the
                        Court of Common Pleas of Belmont County, Ohio
                                    Case No. 16-CR-268

                                         BEFORE:
                  Cheryl L. Waite, Gene Donofrio, Carol Ann Robb, Judges.


                                                JUDGMENT:
                                                  Affirmed.

Atty. Dan Fry, Belmont County Prosecuting Attorney and
Atty. J. Kevin Flanagan, Assistant Prosecuting Attorney
147-A West Main Street, St. Clairsville, Ohio 43950, for Plaintiff-Appellee

Atty. Edward Lee Gillison, Jr., Gillison & Gillison Law Offices, 3139 West Street,
Weirton, West Virginia 26062-4636, for Defendant-Appellant.

                                     Dated: September 17, 2018


WAITE, J.
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       {¶1}   Appellant John Anthony Thomas, Sr. appeals his convictions for

kidnapping and felonious assault in the Belmont County Court of Common Pleas.

Appellant raises a number of issues on appeal including: failure to grant a mistrial or

sanction for alleged discovery violations, prejudicial error resulting from discovery

violations, cumulative error, and merger. For the reasons set forth below, Appellant’s

assignments of error are without merit and the judgment of the trial court is affirmed.

                              Facts and Procedural History

       {¶2}   Appellant’s wife of 28 years, Jaqueline “Jackie” Thomas (“Mrs. Thomas”),

testified that between five and six o’clock on the morning of July 13, 2016, she was

awakened by Appellant, profanely demanding she get out of bed. (Tr., pp. 384-385.)

Mrs. Thomas testified that Appellant grabbed her by the arm and the hair of her head,

causing her to stand and forcibly follow him to the bathroom so that their sleeping

grandchild, who remained in the bed, would not be awakened. (Tr., pp. 385-386.)

       {¶3}   Mrs. Thomas testified that once in the bathroom, Appellant held her by her

arms, complaining that he believed she wanted a divorce. When he then grabbed her

by the throat, she told him that he was hurting her. (Tr., p. 386.) Mrs. Thomas testified

that Appellant used his non-dominant hand to punch her across the face, causing her

nose to bleed and her teeth to hit the inside of her mouth, before holding her by the hair

and slapping her across the face multiple times. (Tr., pp. 386-387.) She testified that

after she was slapped she told Appellant to stop and that he was hurting her but that

this caused Appellant to use his non-dominant hand to hold her by her hair and use his

dominant hand to choke her while saying, “[y]ou want a divorce. You’re going to leave

me. I’ll kill you. You won’t leave me. No one else will have you. You’ll suffer.” (Tr., p.




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387.) Appellant then pushed her towards the already filled bathtub, knocking her knee

into it, and continued to hold her by the hair and choke her. (Tr., pp. 387-388.)

       {¶4}     Mrs. Thomas testified that Appellant put her head in “scalding” and

burning hot water. (Tr., p. 388.) She testified that she was able to unpin her arm from

the side of the tub, push up and cry for help. However, Appellant slammed her head

into the side of the tub, leaned on her until she slid into the tub, and proceeded to choke

her from the back of her neck while holding her under the water by her hair. (Tr., pp.

388-389.)      Mrs. Thomas testified that while Appellant continued choking her she

attempted to pull the drain to the tub, believing she was going to die, prior to blacking

out. (Tr., p. 389.)

       {¶5}     Appellant was issued an indictment on July 13, 2016, by a Grand Jury in

Belmont County consisting of five charges: two alternative charges of kidnapping in

violation of R.C. 2905.01(A)(3) and R.C. 2905.01(B)(2) respectively, both first degree

felonies; two alternative charges of felonious assault in violation of R.C. 2903.11(A)(1)

and R.C. 2903.11(A)(2) respectively, both second degree felonies; and attempted

murder in violation of R.C. 2903.02(A), a first degree felony.

       {¶6}     A jury trial was held on May 4, 2017. Appellant was found guilty on both

counts of kidnapping in violation of R.C. 2905.01(A)(3) and R.C. 2905.01(B)(2), and a

single count of felonious assault in violation of 2903.11(A)(2). Appellant was found not

guilty of the alternate felonious assault charge and the attempted murder charge. A

sentencing hearing was held on May 31, 2017. The two kidnapping convictions were

merged for sentencing and the trial court imposed a sentence of eleven years on those

convictions.     Appellant was sentenced to eight years for felonious assault.        The




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sentences were ordered to run consecutively for a total stated prison term of nineteen

years. Appellant filed this timely appeal.

                            ASSIGNMENT OF ERROR NO. 1

       THE TRIAL COURT ERRED BY FAILING TO GRANT A MISTRIAL OR

       IMPOSING A SANCTION WHERE THE STATE FAILED TO PROVIDE

       WRITTEN SUMMARES [SIC] OF ORAL STATEMENTS MADE BY MR.

       THOMAS       THAT     WERE       REQUESTED      IN   HIS   DEMAND       FOR

       DISCOVERY.

       {¶7}    Appellant argues that the trial court failed to grant a mistrial or impose a

sanction when the prosecution elicited testimony from witnesses regarding statements

made by Appellant, where these statements were not provided to the defense in its

demand for discovery. We note that in his brief, Appellant cites to the wrong version of

the criminal rule on which he relies.

       {¶8}    The correct version of Crim.R. 16(B) requires prosecuting attorneys to

provide copies or photographs of certain information to the defense provided that the

defense makes a written demand for discovery. Specifically, Crim.R. 16(B)(1), (5), and

(7) provide that, following such a demand, the prosecution must provide:

       (1) Any written or recorded statement by the defendant or a co-defendant,

       including police summaries of such statements * * *

       (5)    Any evidence favorable to the defendant and material to guilt or

       punishment;

       ***




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       (7) Any written or recorded statement by a witness in the state’s case-in-

       chief, or that it reasonably anticipates calling as a witness in rebuttal.

       {¶9}    The rule specifically refers to discoverable evidence that is written or

recorded.     Other courts have determined that, “[a] writing or recording is only a

statement for purposes of Crim.R. 16 if the witness prepared, signed, or adopted the

statement; or if it is a substantially verbatim recital of the witness’s statement written in a

continuous, narrative form.” State v. Scoggins, 4th Dist. No. 16CA3767, 2017-Ohio-

8989, ¶ 38; State v. Cunningham, 105 Ohio St.3d 197, 2004-Ohio-7007, 824 N.E.2d

504, ¶ 44; State v. Phillips, 4th Dist. Nos. 89-CA-32 & 89 CA-33, 1992 WL 42790, *5

(Mar. 5, 1992); State v. Johnson, 62 Ohio App.2d 31, 403 N.E.2d 1003 (6th Dist.1978),

paragraph one of the syllabus; State v. Moore, 74 Ohio App.3d 334, 340, 598 N.E.2d

1224 (10th Dist.1991).

       {¶10} Appellant argues that there were four different witness statements made

at trial that were not disclosed after his demand for discovery, in violation of Crim.R. 16.

The first is a statement made by Mrs. Thomas, who testified that during the attack

Appellant said “[i]f you call the cops, I am going to kill you.” (Tr., p. 398.) The second

was made by his youngest daughter, Teri Thomas, who testified Appellant stated that

he was “going to put [Mrs. Thomas] in the ICU * * * [Mrs. Thomas] [will] suffer before

they get a divorce.” (Tr., p. 324.) The third was made by his daughter-in-law, Taylor

Thomas, who testified that on the way to the hospital Appellant said “[t]hat he was

really, really sorry, and he didn’t mean what he did.” (Tr., p. 289.) The final statement

was made by Brittany Higgs, Appellant’s oldest daughter, who stated that while

checking Appellant into the psychiatric facility at the hospital, Appellant was asked what




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had brought him to the facility. Higgs testified that Appellant responded, “[w]ell, I guess

I’m crazy, because I tried to drown my wife in the bathtub.” (Tr., p. 576.)

       {¶11} Appellant argues that these oral statements witnesses testified were made

by him were discoverable evidence pursuant to Crim.R. 16 and that failure to provide

them prior to trial amounted to prejudicial error, warranting mistrial or other sanction.

This argument is meritless given the actual language and intent of the rule.           The

testimony in question was made by witnesses whose names and addresses were

indisputably disclosed. The relevant provisions of Crim.R. 16(B) explicitly state that the

kind and quality of discoverable evidence the rule is concerned with is that which is

written or recorded, or is “favorable to the defendant and material to guilt or

punishment.” It is clear that these statements were not favorable to Appellant, so they

fail to meet this prong of the statute. Regardless, the statements in question were

volunteered by the witnesses at trial. They had not previously been written or recorded.

As such, the statements do not meet the requirements necessary in order to be

considered a discoverable statement pursuant to Crim.R. 16: they were not written or

recorded; were not prepared, signed, or adopted by the witness; nor were they verbatim

recitals written in continuous, narrative form. Scoggins, supra.

       {¶12} Appellant argues that Crim.R. 16 is violated when the state fails to compile

and provide a written summary of any oral statement that may have been made. This

argument is based on 1994 caselaw and relies on a version of the law that is no longer

valid. Even under the outdated version of Crim.R. 16, the statements that were required

to be compiled and provided in written form were oral statements made by a defendant

to a prosecutor or law enforcement official. The statements Appellant complains of in




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this case were made by Appellant, but were not made to a prosecutor or law

enforcement official.   Rather, these statements were made to his relatives and to

hospital personnel. Even under the former version of the rule these statements would

not have been required to be summarized and given to Appellant.

       {¶13} We have held that “Crim.R. 16 does not mandate the pretrial discovery of

witness statements.” State v. McKinnon, 7th Dist. No. 09 CO 17, 2010-Ohio-2145, ¶ 16.

The Sixth District further clarified that “[a]lthough the rule requires the state to disclose

witnesses' statements, it does not require the state to reduce interviews with potential

witnesses to writing.” State v. Clark, 6th Dist. No. L-17-1044, 2018-Ohio-521, ¶ 38;

State v. Jackson, 9th Dist. No. 27739, 2017-Ohio-278, ¶ 11, 81 N.E.3d 942. Moreover,

a prosecutor’s notes of his discussions with witnesses are protected under Crim.R. 16

as work product. Scoggins, supra, at ¶ 38; State v. Henry, 37 Ohio App.3d 3, 523

N.E.2d 877 (6th Dist.1987), paragraph three of the syllabus.               These holdings

underscore that the state does not owe a duty to record or make a written summary of

oral statements made by witnesses, but merely to provide recorded or written

statements if these were otherwise recorded or written in the course of the investigation

and do not amount to attorney work product.

       {¶14} Even if we were to assume, arguendo, that the state’s failure to disclose

oral statements made by Appellant to witnesses is, in fact, a Crim.R. 16 violation, we

would still conclude that the trial court did not abuse its discretion by denying the motion

for mistrial or by failing to impose a sanction. The Ohio Supreme Court has held a

violation of Crim.R. 16 constitutes reversible error “only when there is a showing that (1)

the prosecution's failure to disclose was a willful violation of the rule, (2) foreknowledge




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of the information would have benefited the accused in the preparation of his defense,

and (3) the accused suffered some prejudicial effect.” State v. Joseph, 73 Ohio St.3d

450, 458, 653 N.E.2d 285 (1995), citing State v. Parson, 6 Ohio St.3d 442, 445, 453

N.E.2d 689 (1983). The court in State v. Litton, 12th Dist. No. CA2016-04-005, 2016-

Ohio-7913, ¶ 11, citing State v. Bowshier, 2d Dist. No. 06-CA-41, 2007-Ohio-5364, ¶ 31

has defined willful as “intent, purpose or design to injure.”

       {¶15} Appellant argues that nondisclosure was willful because the prosecutor

knowingly elicited witness testimony in his case-in-chief that contained the testimony

Appellant alleges were prejudicial. The state contends Appellant failed to demonstrate

any willful conduct on the part of the prosecution. Moreover, as noted by the state,

Appellant does not argue that the state failed to provide written witness statements

during discovery, but that the witnesses’ live testimony at trial contained additional

statements made by Appellant, and these could be seen as prejudicial.         The state

contends Appellant did not object to the statements at trial. A review of the transcripts

reveals that while Appellant never objected to any of the four statements made by the

four separate witnesses at the time they were made, he did raise an objection the next

trial day.

       {¶16} Regardless, Appellant’s contention about the witnesses’ trial testimony is

misplaced.    As noted, Crim.R. 16 serves as a protection against the state willfully

withholding prepared written statements that are favorable to the defendant and

material to the issue of guilt or innocence. Appellant received prepared, written witness

statements prior to trial.   The statements at issue here were made by the state’s

witnesses during trial and which did not appear in their prepared statements. Appellant




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does not claim that the state deliberately hid the statements, or even knew that they

would be made during trial. Moreover, Appellant did not lodge an immediate objection

to the statements when they were uttered, instead allowing the direct testimony to

proceed unfettered until the next day, when the issue was raised during a bench

conference. If Appellant never made these statements to or in front of the witnesses, as

he contends, he had an opportunity to cross-examine each witness, utilizing their written

statements (that did not include the disputed remarks) to impeach their direct testimony.

He did not attempt such an impeachment. Based on the criminal rule, the prosecutor’s

failure to disclose the oral statements made by the defendant to or in front of various

witnesses is far from willful. The state was not under a duty to disclose these oral

statements or compile and provide written summaries of statements not otherwise

recorded. We note that there is no evidence of record that the state was aware of these

statements made by Appellant to the witnesses prior to their trial testimony. Assuming

the witnesses may have disclosed them to the prosecutor, they would be protected as

work product. Ultimately, assuming we could find that the state’s conduct was willful

and defense counsel may have benefited from disclosure of the disputed statements

when preparing Appellant’s defense, the statements were not so prejudicial as to deny

Appellant a fair trial and warrant a mistrial. As the record is replete with evidence of

Appellant’s conduct on the day in question from multiple witnesses, the disputed

statements are not likely to have deprived Appellant of a fair trial.

       {¶17} Regarding Appellant’s claim that the trial court abused its discretion in

failing to impose a sanction, this argument is also meritless. “Imposition of discovery

sanctions is discretionary, and we review the trial court’s decision for an abuse of




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discretion.” Clark, supra, at ¶ 37; State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-

966, 986 N.E.2d 971, ¶ 20, 33. Abuse of discretion in this case means that the trial

court’s decision was unreasonable, arbitrary, or unconscionable.            Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983); State v. Clark, 6th Dist. No.

L-17-1044, 2018-Ohio-521, ¶ 37 citing State ex rel. Askew v. Goldhart, 75 Ohio St.3d

608, 610, 665 N.E.2d 200 (1996).

      {¶18} Crim.R. 16(L)(1) dictates regulation of discovery and states:

      The trial court may make orders regulating discovery not inconsistent with

      this rule. 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.

      {¶19} This record shows the state did not run afoul of the discovery rules. The

trial court here was correct in overruling the motion to dismiss and in permitting the

statements to be heard through witness testimony. Even if the state had failed to turn

over discoverable statements, the court was well within the realm of discretion in

permitting the testimony because it falls within the broad discretion granted to the court

under Crim.R. 16(L)(1).

      {¶20} For the reasons set forth above Appellant’s first assignment of error is

without merit and is overruled.

                           ASSIGNMENT OF ERROR NO. 2




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       THE     TRIAL    COURT       COMMITTED       PREJUDICIAL        ERROR      BY

       ALLOWING THE STATE TO USE TEXT MESSAGES CONTAINED IN

       STATE'S EXHIBIT 15A - 15L DURING CROSS-EXAMINATION.

       {¶21} Appellant argues that the trial court committed prejudicial error in two

separate, distinct arguments. The first involves text messages introduced at trial which

Appellant argues were improperly admitted because they were not provided in the

defense demand for discovery. The second is that Appellant was prejudiced because

the text messages were admitted as prior bad acts evidence when the door had not

been opened by the defense. The text messages at issue were sent to Appellant’s wife

prior to the attack and state the following: 1) “Fuck you very much. What you cut your

own fucking throat.” (Tr., pp. 798-799); 2) “Don’t care who you fuck. Die. You’re a

fucking whore. And I hate you bitches don’t appreciate anything.” (Tr., p. 799); 3)

“Want treated like a whore * * * [y]ou will suffer till I watch them throw—* * * Till I watch

them throw the dirt in your face. Promise.” (Tr., p. 800); 4) “I can give any bitch a good

life, stupid. I’m going to cut your face off your head. I’m waiting.” (Tr., p. 802); 5) “You

have to come here sometime * * * [o]r would you rather for me to find you and kill you.”

(Tr., p. 803); 6) “[F]uck you up that much worse. I will find you. Trust me.” (Tr., p.

803); 7) “You will come back and I will be waiting. I have patient [sic] cause your end

result will be worth it. Nothing but time. And if you gave away anything of mine, you go

to the ICU.” (Tr., p. 805); 8) “You better give me some burgers or something. Or I’m

going to rip your fucking scar long.” (Tr., pp. 805-806); and 9) “Watch your tongue if

you like it in your mouth.” (Tr., p. 808.)

                                   Texts During Discovery




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      {¶22} Appellant’s first argues that prejudicial error occurred when the trial court

permitted these text messages to be admitted at trial when they were not timely

produced by the state in the defense demand for discovery. Appellant contends the trial

court abused its discretion by failing to impose a sanction for untimely disclosing this

text message evidence, again relying on a former version of Crim.R. 16(E)(3).

      {¶23} Again, whether to sanction for a discovery violation falls within the broad

discretion of the trial court. State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986

N.E.2d 971, ¶ 20. When determining whether to impose a sanction the court should

consider:   (1) whether the nondisclosure was willful; (2) whether knowledge of the

material beforehand would have benefited the accused in preparing for trial; and (3)

whether the accused was prejudiced. Id. at ¶ 35, citing State v. Parson, 6 Ohio St.3d

442, 453 N.E.2d 689 (1983), syllabus.

      {¶24} The record reveals the state received these text messages from a lay

witness the evening of Monday, May 1, 2017. (Tr., p. 166.) Both parties concede that

the prosecution provided defense counsel with emailed copies of the text messages the

morning of Wednesday, May 3, 2017, the day before trial. Following voir dire and prior

to empaneling the jury on Thursday May 4, 2017, defense counsel moved to exclude

the text messages under Evid.R. 404, prior bad acts evidence. At that time, the state

indicated that it did not intent to introduce the text messages as evidence during trial,

but if it were to seek admission the state would rely on Evid.R. 801(D)(2), admission by

a party-opponent. The trial court found “a statement is not hearsay if the statement is

offered against a party and is the parties’ own statement.” (Tr., p. 169.) The court

ultimately overruled the motion but stated that the court would reconsider the issue if




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and when the state sought admission of the text messages into evidence. We note that

Appellant did not request a continuance based on this evidence.

       {¶25} On Saturday, May 6, 2017 the defense called Appellant to testify on direct

examination as its final witness. Based on Appellant’s direct testimony, the state sought

on cross-examination to admit the text messages into evidence. Appellant’s counsel

objected. The trial court overruled the objection and permitted the text messages to be

admitted. Appellant’s counsel raised numerous objections regarding the text message

evidence, including: a motion to exclude; an objection on the grounds of hearsay; an

objection regarding improper impeachment, arguing that the door had not been opened

to allow for the admission of the text messages; and an objection based on Evid.R.

404(B) arguing that prior bad acts should be excluded.

       {¶26} The trial court overruled each of Appellant’s objections. Defense counsel

additionally made a motion to strike all of Appellant’s responses to the state’s

questioning about the text messages on the basis that a document cannot be

authenticated by verifying its contents. Counsel also raised a second objection that the

texts were introduced as improper impeachment evidence of a hearsay declarant, which

the trial court again overruled.

       {¶27} To demonstrate an abuse of discretion, Appellant must first show that the

prosecutor’s nondisclosure of discoverable evidence was willful in violation of the rule.

Parson, supra, at 445.       Appellant’s only argument in this regard is that the text

messages were untimely disclosed; the messages were discovered on Monday evening

and were not disclosed to defense counsel until Wednesday morning. “Willful” has




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been defined as “intent, purpose or design to injure.”          Litton, supra, at ¶ 11, citing

Bowshier, supra, at ¶ 31.

       {¶28} In State v. Bandy, we held that when a prosecutor receives new evidence

the day of trial and discloses that evidence to opposing counsel on that day, it is not a

willful violation of Crim.R. 16. State v. Bandy, 7th Dist. Nos. 10 MA 74, 10 MA 120,

2011-Ohio-4332, ¶ 13. Also, in State v. Morris, we held that when the state received

new evidence one week prior to trial and does not disclose the evidence to opposing

counsel until the day prior to a pretrial hearing, the late disclosure does not constitute a

willful violation. State v. Morris, 7th Dist. No. 08 CO 7, 2009-Ohio-3326, ¶ 115.

       {¶29} In the instant matter, the state disclosed the new evidence within

approximately one and one-half days of receiving the materials. While discovery and

disclosure were both on the eve of trial, similar to Morris, these materials were disclosed

the day prior to trial and were not actually used in trial until the final day of testimony,

against the final witness on cross-examination. This occurred four days after the initial

disclosure. Disclosure within days of receiving the discovery materials does not meet

the definition of “willful.” Given that the evidence was disclosed within a day and a half

of receiving the materials and that the evidence was not used until four days later on the

final day of witness testimony, it is evident that the short period before disclosure

occurred in this case does not rise to the level of a willful violation of the rule.

       {¶30} Even if we were to view this period of time between receiving the evidence

and its disclosure to defense counsel as a willful violation, Appellant must also show

that having the information sooner would have benefited the defense in preparation for

trial and that the failure to disclose resulted in prejudice. Appellant’s sole argument in




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this regard is that having the text messages earlier would have benefited Appellant in

deciding how to testify on direct examination (rather than “whether” to testify.) At no

time did Appellant contest the authenticity of the text messages nor did he seek a

continuance to allow more time to prepare his defense. Although Appellant objected to

receiving the text message evidence at such a late hour, he has not remotely

demonstrated that he was prejudiced by not having the evidence earlier given the facts

and procedural history of this case.

      {¶31} Appellant appears to argue that prejudice existed simply because the

materials contained “damaging incriminating statements made by [Appellant].”

(Appellant’s Brf., p. 9.) Text messages sent from a defendant are “the party’s own

statements if the statements were properly authenticated.” State v. Shaw, 7th Dist. No.

12 MA 95, 2013-Ohio-5292, ¶ 42. Again, Appellant does not contest the authenticity of

the text messages in question. Instead he argues that because his texts were obviously

damaging, this introduction against him automatically resulted in prejudice. The fact

that these messages were obviously damaging does not address any prejudice that

may have been suffered simply by their tardy disclosure, the issue in this assignment.

Appellant does not meet the burden in showing that prior knowledge would have

benefited defense preparation. Appellant was clearly well aware of the existence of the

text messages in question and did not ask for more time to prepare to address them if

offered into evidence.

      {¶32} Assuming Appellant met his burden of proving willfulness, beneficial

foreknowledge, and prejudice, the trial court did not abuse its discretion by failing to

impose a sanction or granting a motion to strike. Crim.R. 16(L)(1) specifically states




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that in regulating discovery, “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.”

       {¶33} Again, Appellant failed to ask for a continuance or other less stringent

discovery sanction. Assuming a discovery violation had occurred, the court may have

been justified in imposing a sanction, but courts are not bound to impose sanctions or

grant motions to strike. A court also “may make such other order as it deems just under

the circumstances.” Crim.R. 16(L)(1). The trial court in this case elected to postpone

ruling on admitting the evidence to see whether and in what circumstances it would be

produced at trial. Postponing a ruling on the admissibility of the evidence is well within

the discretion of the court.

       {¶34} Appellant does not meet the burden of proving willful nondisclosure,

beneficial foreknowledge in preparing a defense, or prejudice from late disclosure of the

evidence. Even if Appellant did meet this burden, the remedy imposed by the trial court

would be adequate and within the scope of the discretion of the trial court.

                                      Prior Bad Acts

       {¶35} Appellant’s second argument in this assignment of error is that the

evidence should have been excluded because it was used by the state to prove prior

bad acts. Appellant alleges here that the trial court permitted the state to use prior bad

acts evidence contrary to Evid.R. 404(B) when the acts in question were not first raised

by the defense, when the state did not provide timely notice of intent to use such

evidence, and that no curative instruction was given to the jury.




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       {¶36} “Trial court decisions regarding the admissibility of other-acts evidence

under Evid.R. 404(B) are evidentiary determinations that rest within the sound discretion

of the trial court. Appeals of such decisions are considered by an appellate court under

an abuse-of-discretion standard of review.” State v. Morris, 132 Ohio St.3d 337, 2012-

Ohio-2407, 972 N.E.2d 528, syllabus.

       {¶37} The evidence here consisted of text messages between Appellant and his

wife, Mrs. Thomas, which occurred approximately one week prior to the incident at

issue. Again, defense counsel objected to the use of the text message evidence on

numerous grounds, multiple times.        Appellant’s initial objection and request for an

Evid.R. 404(B) hearing on the evidence was overruled and the trial court stated that it

would rule on the evidence if and when the state intended to admit the evidence.

       {¶38} The state ultimately did seek to introduce the text message evidence in

response to Appellant’s testimony on direct examination that Appellant and his wife

were on “good terms” prior to the incident.        The messages were authenticated by

Appellant on cross-examination.       (Tr., pp. 788-791.)    The messages amounted to

conversations between Appellant and his wife in which Appellant made numerous

threats, including that he would kill her. (Tr., pp. 798-806.)

       {¶39} Appellant contends that the state introduced the text messages under

Evid.R. 404(B) to prove prior bad acts and that the evidence was inadmissible because

the defense did not open the door to the issue. Further, Appellant contends the state

did not give notice of its intent and purpose to use the evidence. The prosecutor stated:

       [Appellant’s counsel] is correct that we did provide [the texts]. I received

       those not through law enforcement, but from lay witnesses on Monday




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       evening. We did provide them on Wednesday morning. I think that it may

       have -- without a doubt, they have been or they were provided late. So

       the State of Ohio, at this juncture, will ask the Court not to make a ruling

       until or unless we decide to use those – or, as evidence. At this point in

       time, we don’t intend to do that.


(Tr., pp. 166-167.)

       {¶40} Appellant complains that the prosecutor expressly stated prior to trial that

it was not his intention to use the evidence at trial. At trial, the state requested the court

for permission to use the evidence to impeach Appellant’s testimony, arguing that

Appellant opened the door to the text message evidence when he declared that he and

his wife were on “good terms.” (Tr., p. 787.)

       {¶41} Evid.R. 404(B) reads:

       Evidence of other crimes, wrongs, or acts is not admissible to prove the

       character of a person in order to show action in conformity therewith. It

       may, however, be admissible for other purposes, such as proof of motive,

       opportunity, intent, preparation, plan, knowledge, identity, or absence of

       mistake or accident. In criminal cases, the proponent of evidence to be

       offered under this rule shall provide reasonable notice in advance of trial,

       or during trial if the court excuses pretrial notice on good cause shown, of

       the general nature of any such evidence it intends to introduce at trial.

       {¶42} The Ohio Supreme Court established a three-step analysis for considering

“other acts” evidence:




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       The first step is to consider whether the other acts evidence is relevant to

       making any fact that is of consequence to the determination of the action

       more or less probable than it would be without the evidence. Evid.R. 401.

       The next step is to consider whether evidence of the other crimes, wrongs,

       or acts is presented to prove the character of the accused in order to show

       activity in conformity therewith or whether the other acts evidence is

       presented for a legitimate purpose, such as those stated in Evid.R.

       404(B). The third step is to consider whether the probative value of the

       other acts evidence is substantially outweighed by the danger of unfair

       prejudice. See Evid.R 403.

State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 20.

       {¶43} Appellant takes issue with the text messages being used during cross-

examination to impeach one comment on direct examination: that he and his wife were

on “good terms.”      (Tr., p. 787.)    This record shows that when asked on direct

examination by his counsel whether he found it puzzling his wife would claim he was

trying to kill her, Appellant responded, “I don’t understand why * * * we was [sic] on such

good terms, especially for these last two months. You know, we did things together.

We had plans, like going to the lake together. Doing things together, just me and her,

you know. Things that's special to me. It doesn't matter if we take a ride in a car. It's

me and her.” (Tr., p. 751.) Appellant also testified:

       I try to talk to her about it. Trying to make up, do things, special things.

       Sometimes, some days it works. Some days she says she's done, you

       know. That hurts, but I know that that's my fault. But you know, I'm trying




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       to make up for it. I'm trying to move on with my wife through this, you

       know. I am not perfect. I ain't claim to be a perfect husband or father.


(Tr., p. 749.)

       {¶44} The state argues that although it initially did not intend to use the text

messages, the text messages became relevant to demonstrate that Appellant was

being untruthful.    After objections and multiple bench conferences, the trial court

ultimately permitted the state to question Appellant about the texts. The text messages

clearly contradicted Appellant’s assertion that he and his wife were on good terms in

their marriage.     As the theory proposed by the state in using the texts was that

Appellant was not being truthful in his characterization of his relationship with the victim,

this record reflects that he opened the door to introduction of the text messages which

were sent by Appellant approximately a week prior to the offense. The relevance of the

texts is patently clear as they reveal the parties were obviously not on “good terms.”

The use of the evidence comports with the first step of the Williams test.

       {¶45} Reviewing the second step, it is clear that the purpose of the text

messages was not to show that Appellant acted in conformity with his past behavior, but

rather to establish Appellant’s motive and intent pursuant to the Evid.R. 404(B)

exceptions. The evidence tends to show Appellant’s motive or intent to commit some

act of violence against Mrs. Thomas. There is nothing on the record to indicate that the

purpose of introducing the text messages was to show that Appellant was acting in

conformity with any past behavior.

       {¶46} Finally, under the third Williams step, the probative value of the evidence

outweighs the risk of unfair prejudice.      It does show quite clearly that Appellant’s



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relationship with his wife was not good and that he should not have been surprised she

thought he might hurt her. Additionally, the amount of other evidence and testimony in

this particular case is overwhelming. We have held that even where it was error to

admit the evidence, “[w]here there is no reasonable possibility that unlawful testimony

contributed to a conviction, the error is harmless and therefore will not be grounds for

reversal.” State v. Howard-Ross, 7th Dist. No. 13 MA 168, 2015-Ohio-4810, 44 N.E.3d

304, ¶ 22, citing State v. Lytle, 48 Ohio St.2d 391, 358 N.E.2d 623 (1976), paragraph

three of the syllabus, vacated on other grounds in Lytle v. Ohio, 438 U.S. 910, 98 S.Ct.

3135, 57 L.Ed.2d 1154 (1978).

       {¶47} Appellant argues that he did not open the door for impeachment and that,

even if he did, the state used the evidence for purposes beyond those permitted by the

rule. The state argued at trial that it should be permitted to impeach Appellant on the

issue of whether or not he and his wife were on “good terms” based on Appellant’s

testimony on direct examination that they were.        In fact, Appellant claimed he was

puzzled by her assertions that he wanted to harm her, because they were on such

“good terms.” (Tr., p. 787.) Evid.R. 608 allows for impeachment based on specific acts

when it is being used to show truthfulness or lack thereof. It states in pertinent part:

       Specific instances of the conduct of a witness, for the purpose of attacking

       or supporting the witness's character for truthfulness, other than conviction

       of crime as provided in Evid. R. 609, may not be proved by extrinsic

       evidence. They may, however, in the discretion of the court, if clearly

       probative of truthfulness or untruthfulness, be inquired into on cross-

       examination of the witness (1) concerning the witness's character for




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       truthfulness or untruthfulness, or (2) concerning the character for

       truthfulness.

Evid.R. 608 (B).

       {¶48} The state used the evidence to impeach Appellant, who testified that he

and his wife had a good relationship, and this impeachment tended to show Appellant’s

motive and intent to commit the charged conduct. Under Evid.R. 404(B), in criminal

cases the party seeking to introduce evidence of prior bad acts has a duty to provide

notice to opposing counsel prior to trial, or if permission is being sought for the first time

during trial, this tardiness must be excused by the court for good cause shown. In the

instant case, the trial court excused nondisclosure during trial for good cause shown.

The record supports the court’s decision because it reveals that the state was first

presented with the evidence right before trial, promptly disclosed the evidence to

defense counsel and, even then, the evidence was not used in the state’s case in chief

but was used for impeachment of Appellant on cross-examination.               Therefore, the

tardiness was properly excused by the court and the evidence was admissible under

Evid.R. 404(B).

       {¶49} Appellant’s final contention regarding this issue is that the trial court

should have issued a curative instruction to the jury. A trial court's curative instruction is

recognized as an effective way to remedy errors which occur during trial. State v.

Shaw, 7th Dist. No. 15 BE 0065, 2017-Ohio-1259, ¶ 14; State v. Zuern, 32 Ohio St.3d

56, 61, 512 N.E.2d 585 (1987). There were no errors requiring the remedy of a curative

instruction, here. Even if Appellant had proved error, his counsel did not timely request

a curative instruction. Appellant argues that defense counsel objected to the evidence




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and requested an Evid.R. 404(B) instruction, citing a response from the trial court

regarding whether or not the evidence actually amounted to prior bad acts. There is no

direct request from defense counsel for an Evid.R. 404(B) instruction prior to jury

instructions being given. While some discussion of jury instructions appears on the

record, no actual request was made that such an instruction be given. (Tr., p. 796.)

The record shows that defense counsel did not ask for an Evid.R. 404(B) instruction

until Tuesday May 9, 2017, after the jury instructions had already been given and

approved by both counsel.       Moreover, each time defense counsel argued against

admission pursuant to Evid.R. 404(B), the court supplied an explanation and definition

of the rule. Therefore it cannot be said that the trial court did not give any instruction

regarding the acceptable use of Evid.R. 404(B).

       {¶50} Pursuant to Evid.R. 103(A)(1), we will not find error in a trial court’s

decision to admit evidence unless a substantial right of the party is affected and a timely

objection or motion to strike is made on the record. See, also, Crim.R. 52(A). A trial

court's decision to admit prior bad acts evidence under Evid.R. 404(B) is reviewed for

an abuse of discretion. State v. Moore, 7th Dist. No. 02CA152, 2004-Ohio-2320, ¶ 39.

We have held that an abuse of discretion is found only if, after considering the totality of

the circumstances, the court's decision was unreasonable, unconscionable, or arbitrary

and that it materially prejudiced the defense. State v. Parker, 7th Dist. No. 04CO44,

2005-Ohio-6777, ¶ 29 citing Moore, supra, at ¶ 39.

       {¶51} Based on this record it cannot be said that the trial court committed an

abuse of discretion. There was overwhelming evidence presented against Appellant.

While the test messages were damaging, we cannot say that Appellant would not have




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been convicted had they been excluded. Further, Appellant’s defense was based on his

assertion that his wife made up the incident and that they had a good relationship.

Even if the text messages had been erroneously admitted, the probative value

substantially outweighed the prejudicial effect. Therefore, based on this reasoning and

the totality of the circumstances we cannot say that the trial court’s decision was

unreasonable, unconscionable, or arbitrary or that it materially prejudiced the defense

so far as to deny Appellant the right to a fair trial. Appellant’s second assignment of

error is without merit and is overruled.

                             ASSIGNMENT OF ERROR NO. 3

       THE CUMULATIVE EFFECT OF THE ERRORS SET FORTH IN THE

       FIRST AND SECOND ASSIGNMENTS OF ERROR DENIED MR.

       THOMAS A FAIR TRIAL.

       {¶52} In his third assignment of error, Appellant asserts that the nondisclosure of

Appellant’s oral statements and untimely disclosure of the text message evidence

constitute willful discovery violations that, together, seriously affect the integrity and

outcome of Appellant’s proceeding under the cumulative error doctrine.

       {¶53} We have held that under this doctrine, a conviction will be reversed when

the cumulative effect of the errors in a trial deprives a defendant of the constitutional

right to a fair trial, even though each of the errors in isolation does not individually rise to

the level necessary for reversal. State v. Baer, 7th Dist. No. 07 HA 8, 2009-Ohio-3248,

¶ 82; State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995). The cumulative

error doctrine does not apply when the alleged errors are harmless or nonexistent. Id.;

State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, 796 N.E.2d 506, ¶ 48.




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       {¶54} It is not sufficient to just “intone the phrase cumulative error.” State v.

Agee, 7th Dist. No. 14 MA 0094, 2016-Ohio-7183, ¶ 72 citing State v. Young, 7th Dist.

No. 07 MA 120, 2008-Ohio-5046, ¶ 65, quoting State v. Bethel, 110 Ohio St.3d 416,

2006-Ohio-4853, 854 N.E.2d 150, ¶ 197. “Thus, where an appellant raises the doctrine

without further analysis, the assignment of error has been held to lack substance.”

Agee at ¶ 72, quoting Young, supra, at ¶ 65, citing State v. Sapp, 105 Ohio St.3d 104,

2004-Ohio-7008, 822 N.E.2d 1239, ¶ 103.

       {¶55} Based on our resolution of the assignments of error on this appeal, all

claimed errors either fail to rise to the level of error at all or are harmless. Therefore,

there is no cumulative prejudicial error. Appellant merely states that cumulative error

existed on the basis of his previous assignments of error. Appellant provides no further

analysis regarding how the alleged cumulative error resulted in prejudice or in the denial

of a fair trial. Appellant’s argument is without merit and is overruled.

                            ASSIGNMENT OF ERROR NO. 4

       THE TRIAL COURT ERRED BY FALILING [SIC] TO MERGE THE

       FELONIOUS        ASSAULT        CONVICTION        WITH      THE      MERGED

       KIDNAPPING CONVICTIONS FOR SENENCING [SIC] PURRPOSES

       [SIC] AS ALLIED OFFENSE OF SIMILAR IMPORT.

       {¶56} In his fourth assignment of error, Appellant claims the trial court erred by

failing to merge his felonious assault conviction with the already merged kidnapping

convictions as allied offenses of similar import for sentencing purposes.

       {¶57} Appellant was convicted on two counts of kidnapping in violation of R.C.

2905.01(A)(3) and R.C. 2905.01(B)(2), which the trial court merged at sentencing.




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Appellant was also convicted of a single count of felonious assault in violation of

2903.11(A)(2). R.C. 2905.01(A)(3) and (B)(2) provide:

      (A) No person, by force, threat, or deception, or, in the case of a victim

      under the age of thirteen or mentally incompetent, by any means, shall

      remove another from the place where the other person is found or restrain

      the liberty of the other person, for any of the following purposes:

      ***

      (3) To terrorize, or to inflict serious physical harm on the victim or another;

      ***

      (B) No person, by force, threat, or deception, or, in the case of a victim

      under the age of thirteen or mentally incompetent, by any means, shall

      knowingly do any of the following, under circumstances that create a

      substantial risk of serious physical harm to the victim or, in the case of a

      minor victim, under circumstances that either create a substantial risk of

      serious physical harm to the victim or cause physical harm to the victim:

      ***

      (2) Restrain another of the other person's liberty.

      {¶58} R.C. 2903.11(A)(2) provides:

      (A) No person shall knowingly do either of the following:

      ***

      (2) Cause or attempt to cause physical harm to another or to another's

      unborn by means of a deadly weapon or dangerous ordnance.

      {¶59} Appellant correctly cites the controlling law R.C. 2941.25 which states:




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      (A) Where the same conduct by defendant can be construed to constitute

      two or more allied offenses of similar import, the indictment or information

      may contain counts for all such offenses, but the defendant may be

      convicted of only one.

      (B) Where the defendant's conduct constitutes two or more offenses of

      dissimilar import, or where his conduct results in two or more offenses of

      the same or similar kind committed separately or with a separate animus

      as to each, the indictment or information may contain counts for all such

      offenses, and the defendant may be convicted of all of them.

      {¶60} The issue of allied offenses for purposes of merger pursuant to R.C.

2941.25 is reviewed under a de novo standard. State v. Fortner, 2017-Ohio-4004, 82

N.E.3d 60, ¶ 7 (7th Dist.) citing State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699,

983 N.E.2d 1245, ¶ 26-28. The burden is on the defendant to establish his entitlement

to merger. Id. citing State v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, 999

N.E.2d 661, ¶ 18.

      {¶61} In determining whether offenses are allied offenses of similar import within

the meaning of R.C. 2941.25, courts must evaluate three separate factors: the conduct,

the animus, and the import. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34

N.E.3d 892, paragraph one of the syllabus.        If any of the following are true, a

defendant's convictions do not merge and he or she may be sentenced for multiple

offenses: (1) the offenses are dissimilar in import or significance; in other words, each

offense caused separate, identifiable harm, (2) the offenses were committed separately,

or (3) the offenses were committed with separate animus. Id.




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       {¶62} In the instant matter, the record reflects that Appellant went to the victim’s

bedside and grabbed her by the hair and the arm, forcibly pulling her out of bed to a

standing position.    He dragged her into the bathroom.        At that point, the forcible

detainment of the victim and the act of leading her against her will into the bathroom

completed the kidnapping offense. Once Appellant had the victim in the bathroom, he

punched her face multiple times and held her head under the scalding water, preventing

her from breathing. This second course of conduct constituted felonious assault. The

harm caused by the kidnapping is clearly identifiable from the felonious assault, one

reason being that the victim would not be near the tub of water were it not for the

kidnapping and restraint of her liberty.

       {¶63} The second factor requires review of whether the offenses were

committed separately. If so, there is no merger. The evidence of record demonstrates

two separate courses of conduct here. The first offense involved restraint of the victim

and forcibly removing her to the bathroom. The second offense consisted of utilizing

the bath tub as a deadly weapon and submerging the victim after multiple punches to

the face. Therefore, this record shows the offenses were committed separately.

       {¶64} The third factor requires that the offenses be committed with separate

animus or motivation. “Animus refers to the defendant's immediate criminal motive,

intent or state of mind.” State v. Gilbert, 7th Dist. No. 08 MA 206, 2012-Ohio-1165,

¶ 47; State v. Hooper, 7th Dist. No. 03 CO 30, 2005-Ohio-7084, ¶ 15, citing State v.

Blankenship, 38 Ohio St.3d 116, 119, 526 N.E.2d 816 (1988). Here, the restraint and

movement involved in Appellant’s kidnapping of Mrs. Thomas is not merely incidental to

the felonious assault offense. Appellant kidnapped the victim from the bedroom to the




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bathroom, in part to avoid waking his grandchild. Once there, his assault began both

verbally and with punches. He then used the bath tub as a deadly weapon, supporting

the felonious assault charge. Therefore, separate animus exists precluding merger.

       {¶65} In analyzing the Ruff factors, the offenses were dissimilar in import, were

committed separately, and had separate animus or motivation.          Any one finding

precludes merger. The trial court sentenced Appellant to eleven years on the merged

kidnapping convictions and eight years for felonious assault, and ran the sentences

consecutively.   Based on these findings, Appellant’s fourth assignment of error is

without merit and is overruled.

       {¶66} For the reasons set forth above, Appellant’s arguments are without merit

and the judgment of the trial court is affirmed.


Donofrio, J., concurs.

Robb, P.J., concurs.




Case No. 17 BE 0028
[Cite as State v. Thomas, 2018-Ohio-3768.]




        For the reasons stated in the Opinion rendered herein, the assignments of error

are overruled and it is the final judgment and order of this Court that the judgment of the

Court of Common Pleas of Belmont County, Ohio, is affirmed.              Costs to be taxed

against the Appellant.

        A certified copy of this opinion and judgment entry shall constitute the mandate in

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a

certified copy be sent by the clerk to the trial court to carry this judgment into execution.




                                       NOTICE TO COUNSEL

        This document constitutes a final judgment entry.
