[Cite as Toledo v. Drake, 2015-Ohio-5497.]




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


State of Ohio/City of Toledo                     Court of Appeals No. L-15-1152

        Appellant                                Trial Court No. CRB-15-01493

v.

Frederick Drake, III                             DECISION AND JUDGMENT

        Appellee                                 Decided: December 30, 2015

                                             *****

        Adam Loukx, Director of Law, David Toska, City of Toledo Chief
        Prosecutor, Henry Schaefer and Jimmie Jones, Assistant Prosecutors,
        for appellant.

                                             *****

        SINGER, J.

        {¶ 1} This is an appeal from the Toledo Municipal Court wherein appellee,

Frederick Drake III’s, charges for domestic violence and assault were dismissed with

prejudice. For the reasons that follow, we reverse.
       {¶ 2} On January 30, 2015, appellee was charged with domestic violence in

violation of R.C. 2919.25 and assault, a violation of R.C. 2903.13. The victim alleged

that appellee slammed a car door on her shoulder and then attempted to run her over with

his car.

       {¶ 3} A trial commenced on May 18, 2015. During the victim’s cross-

examination, she testified that her husband had witnessed the incident. When asked if

she told the prosecutor that her husband was a witness she answered affirmatively. At

that point, defense counsel objected and moved to strike the testimony of the victim

based on a discovery violation. Specifically, defense counsel argued that the prosecutor

had committed a discovery violation in that he failed to disclose the victim’s husband as a

witness. Finding the prosecutor’s failure to disclose the name of the witness to be willful,

the trial court dismissed the case against appellee. The city now appeals setting forth the

following assignment of error:

              I. The court erred when it dismissed the case with prejudice for an

       alledged (sic) discovery violation.

       {¶ 4} The granting or overruling of discovery motions in a criminal case rests

within the sound discretion of the trial court. State v. Shoop, 87 Ohio App.3d 462, 469,

622 N.E.2d 665 (3d Dist.1993). Abuse of discretion connotes more than an error of law

or judgment; it implies that the trial court’s decision was arbitrary, unreasonable, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).




2.
       {¶ 5} The Supreme Court of Ohio has stated that “[t]he purpose of the discovery

rules is to prevent surprise and the secreting of evidence favorable to one party.” State v.

Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 19. A trial court must

inquire into the circumstances surrounding a discovery 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. City of Lakewood v. Papadelis, 32 Ohio St.3d

1, 511 N.E.2d 1138 (1987).

       {¶ 6} Crim.R. 16 governs discovery in criminal prosecutions. State v. Blake, 12th

Dist. Butler No. CA2011-07-130, 2012-Ohio-3124, ¶ 15. Crim.R. 16(I) states that:

“[E]ach party shall provide to opposing counsel a written witness list, including names

and addresses of any witness it intends to call in its case-in-chief, or reasonably

anticipates calling in rebuttal or surrebuttal.”

       {¶ 7} Appellee’s discovery demand sought, in pertinent part:

                All written or recorded statements, * * * made by a witness in the

       state’s case-in- chief, or that it reasonably anticipates calling as a witness in

       rebuttal or surrebuttal. For purposes of this request, a “witness” shall

       include any person who has or claims to have knowledge or is believed to

       have knowledge concerning a fact or facts about the issue(s) involved in

       this criminal action * * * or about the credibility of another witness,

       irrespective of whether the [City] intends to call such person as a witness at

       trial.




3.
       {¶ 8} The record shows that following defense counsel’s objection, a recorded side

bar conference was held. Defense counsel moved to strike the witness’s testimony

expressly noting that he was not seeking a dismissal. The prosecutor explained that he

did comply with appellee’s discovery demand, providing the information he had at the

time. As for the victim’s husband, the prosecutor stated he never interviewed him and

only found out of his existence the day of trial. This is because he never interviewed the

victim until the day of trial. Based on the information he received from the victim, the

prosecutor stated he decided to not call the victim’s husband as a witness. He added that

there was no reason to believe that testimony from the victim’s husband would be

exculpatory. The prosecutor further stated:

              I think that’s an extreme remedy to strike the testimony of the city’s

       only witness. In essence, that would be a motion to dismiss. * * * There

       are other remedies available to the court beyond this extreme measure.

       * * * [T]his was not an intentional hiding of the ball, so to speak, Judge.

       {¶ 9} It is well settled that a trial court may not dismiss a case against a party who

has failed to respond to discovery requests unless the record reflects willfulness or bad

faith on the part of the party who has failed to respond. State v. Warfield, 8th Dist.

Cuyahoga No. 86055, 2006-Ohio-935, citing Toney v. Berkemer, 6 Ohio St.3d 455, 453

N.E.2d 700 (1983), syllabus.

       {¶ 10} We have carefully reviewed the entire record, and found no indication that

the state’s failure to abide by the discovery request was done willfully or was motivated




4.
by bad faith. The prosecutor, at minimum, did comply with Crim.R. 16(I) in that he

disclosed the witnesses he intended to call at trial. Although appellee’s discovery

demand sought the names of witnesses “[i]rrespective of whether the [City] intends to

call such person as a witness at trial,” Crim.R. 16(I) has no such requirement. At best,

this appears to be an example of poor trial preparation on the part of the prosecutor for

which less severe sanctions are available. Thus, the use of the most extreme sanction,

that of dismissing the case with prejudice denotes an abuse of discretion.

       {¶ 11} The judgment of the Toledo Municipal Court is reversed, and this matter is

remanded for further proceedings consistent with this decision. Appellee is ordered to

pay the costs of this appeal pursuant to App.R. 24.

                                                                        Judgment reversed.


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


Arlene Singer, J.                               _______________________________
                                                            JUDGE
Stephen A. Yarbrough, P.J.
                                                _______________________________
James D. Jensen, J.                                         JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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