[Cite as State v. Holt, 2019-Ohio-4685.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                  JUDGES:
                                                Hon. W. Scott Gwin, P.J
         Plaintiff-Appellee                     Hon. William B. Hoffman, J.
                                                Hon. John W. Wise, J.
 -vs-
                                                Case No. 2019 CA 0025
 SAGI S. HOLT

        Defendant-Appellant                     O P I N IO N




 CHARACTER OF PROCEEDINGS:                      Appeal from the Richland County Court of
                                                Common Pleas, Case No. 2018-CR-688


 JUDGMENT:                                      Affirmed

 DATE OF JUDGMENT ENTRY:                        November 12, 2019


 APPEARANCES:


 For Plaintiff-Appellee                         For Defendant-Appellant

 GARY BISHOP                                    JAMES L. BLUNT, II
 Prosecuting Attorney                           3954 Industrial Parkway Drive
 Richland County, Ohio                          Shelby, Ohio 44875

 JOSEPH C. SNYDER
 Assistant Prosecuting Attorney
 38 South Park Street
 Mansfield, Ohio 44902
Richland County, Case No. 2019 CA 0025                                                  2


Hoffman, J.
       {¶1}     Appellant Sagi S. Holt appeals the judgment entered by the Richland

County Common Pleas Court convicting him of having weapons under a disability (R.C.

2923.13(A)(3)), tampering with evidence (R.C. 2921.12(A)(1)), four counts of aggravated

possession of drugs (R.C. 2925.11(A),(C)(1)(a)), and one count of possession of drugs

(R.C. 2925.11(A),(C)(2)(a)), and sentencing him to a term of incarceration of 90 months.

Appellee is the state of Ohio.

                            STATEMENT OF THE FACTS AND CASE

       {¶2}     On August 1, 2018, Officer Joseph Gladden of the Mansfield Police

Department received a message from dispatch a person named Charity Griffith, who had

an active warrant for her arrest, had been dropped off at a residence next to 404 Newman

Street in Mansfield, Ohio. Officer Gladden first went to 406 Newman Street, where he

spoke to Jonathan Risser. Risser told the officer several hours earlier, Griffith had

stopped at his house to call Appellant. He directed Gladden to 398 Newman Street.

       {¶3}     As Officer Gladden went to the front door of 398 Newman Street, the blinds

were open, and he saw Griffith inside. Upon seeing the officer, Griffith ran through the

house. Through the living room window, the officer could see a mirrored dish on a coffee

table, with a syringe and baggies sitting on it. He knocked on the door and announced

his presence.

       {¶4}     No one answered the door. Officer Gladden moved to another window and

looked inside the house. He saw Appellant with his back up against the wall next to the

front door, as if he was trying to hide from the officer. The officer spoke to Appellant

through the window, telling Appellant he was there for Griffith and knew she was in the

house. Appellant agreed to send Griffith out.
Richland County, Case No. 2019 CA 0025                                                   3


       {¶5}   Officer Gladden went back to the front door, but noticed the blinds were now

closed. Officer Gladden called inside to ask Appellant for his name. Appellant asked why

the officer wanted his name. The officer responded he noticed drug paraphernalia on the

table when he looked in the window. Appellant said there was nothing there, and opened

the blinds slightly to show the officer the items were gone.

       {¶6}   After about five minutes, Appellant said he would send Griffith out once

Officer Gladden left the front porch. Officer Gladden refused to leave the porch. Appellant

opened the door and quickly shoved Griffith out, trying to quickly shut the door. The

officer blocked the door with his foot, and a brief struggle ensued before Appellant took

off running through the house. Ultimately, Officer Gladden deployed his Taser to stop

Appellant from running away. Appellant fell in the entryway of a bathroom. When

Appellant was able to move, he immediately reached to flush the toilet. Officer Gladden

saw a baggie of white powder swirling in the toilet. The officer tried unsuccessfully to

retrieve the baggie.

       {¶7}   When police had both Griffith and Appellant in custody, they searched the

house. Police found two loaded firearms, and a bag containing pills. In the kitchen

officers found a syringe, bags of marijuana, and a digital scale. Among the drugs seized

from the house were 2.42 grams of fentanyl, 6.33 grams of morphine, 2.04 grams of

buprenorphine, .79 grams of oxycodone, and one tablet of methamphetamine.

       {¶8}   On August 23, 2018, Appellant was indicted by the Richland County Grand

Jury with having weapons under disability, tampering with evidence, four counts of

aggravated possession of drugs, and one count of possession of drugs.
Richland County, Case No. 2019 CA 0025                                                        4


       {¶9}   Trial was set for March 4, 2019. On February 27, 2019, the State provided

Appellant with the names of two witnesses it intended to call at trial, including Jonathan

Risser. Appellant moved to exclude the testimony of these two witnesses.

       {¶10} On the first morning of trial, the State represented only one of the two

witnesses provided in supplemental discovery, Jonathan Risser, would be testifying at

trial. The State suggested since the witness was subpoenaed to appear in the afternoon,

counsel could talk with the witness after jury selection. The court stated at the final pretrial

in the case, counsel for Appellant had questions concerning whether 398 Newman was

Appellant’s residence. Prosecutor Pigg then stated he would look into this, and get back

to defense counsel. Thus, Appellant was placed on notice additional evidence may be

forthcoming on the issue of his residence. The court found because the names were

given almost a week before trial, and counsel would have an opportunity to interview the

witness prior to the witness testifying, the witnesses would be permitted to testify.

Appellant did not request a continuance.

       {¶11} The case proceeded to jury trial.          Risser testified to the best of his

knowledge, Appellant lived in the home at 398 Newman.

       {¶12} Appellant was convicted as charged in the indictment and sentenced to 90

months incarceration. It is from the March 8, 2019 judgment of conviction and sentence

Appellant prosecutes this appeal, assigning as error:



              WHETHER THE TRIAL COURT ERRED IN PERMITTING ONE (1)

       WITNESS TO TESTIFY WHERE THE WITNESS WAS NOT DISCLOSED

       UNTIL FOUR TO FIVE DAYS PRIOR TO TRIAL.
Richland County, Case No. 2019 CA 0025                                                  5


       {¶13} Disclosure of witnesses a party intends to call at trial is governed by Crim.

R. 16, which provides in pertinent part:



              (A) Purpose, Scope and Reciprocity. This rule 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. All duties and remedies are subject to a standard of

       due diligence, apply to the defense and the prosecution equally, and are

       intended to be reciprocal. Once discovery is initiated by demand of the

       defendant, all parties have a continuing duty to supplement their

       disclosures.

              ***

              (I) Witness List. Each 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. The content of the witness list may not be commented upon or

       disclosed to the jury by opposing counsel, but during argument, the

       presence or absence of the witness may be commented upon.

              ***

              (L) Regulation of Discovery.

              (1) The trial court may make orders regulating discovery not

       inconsistent with this rule. If at any time during the course of the
Richland County, Case No. 2019 CA 0025                                                   6


       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 trial court has discretion in determining a sanction for a discovery

violation. State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶33,

citing State v. Parson, 6 Ohio St. 3d 442, 445, 453 N.E.2d 689 (1983). A trial court abuses

its discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary.

State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).

       {¶15} Three factors should govern a trial court's exercise of discretion in imposing

a sanction for a discovery violation committed by the prosecution: (1) whether the failure

to disclose was a willful violation of Crim. R. 16, (2) whether foreknowledge of the

undisclosed material would have benefited the accused in the preparation of a defense,

and (3) whether the accused was prejudiced. Parson, supra, at syllabus.

       {¶16} In the instant case, the record does not suggest the failure to disclose

Jonathan Risser as a witness was willful. Based on the information placed on the record

by the trial court, the issue of whether 398 Newman was Appellant’s residence came up

at the final pretrial hearing in the case, when counsel represented Appellant claimed he

did not live there. The prosecutor stated he would look into this and get back with

Appellant. It appears from the record until this point in the proceedings, the State was
Richland County, Case No. 2019 CA 0025                                                   7


unaware Appellant intended to claim he did not live in the residence where the drugs were

found, and failure to disclose earlier Risser as a witness concerning where Appellant

resided was not willful.

       {¶17} As to whether foreknowledge of the undisclosed witness would have

benefited Appellant in the preparation of a defense, the witness was not a direct fact

witness as to the crimes, but merely was called to testify as to where Appellant lived.

Further, the trial court ensured counsel would have an opportunity to interview the witness

prior to his testimony at trial. When counsel cross-examined the witness at trial, counsel

noted he had spoken to Risser the day prior to his testimony. Risser did not testify as to

any of the details surrounding the charges, and his testimony was limited to an

observation Appellant appeared to be living in the home on August 1, 2018, and he first

began to see Appellant at the home in 2013, or 2014. We find Appellant had adequate

notice of the State’s intention to call Risser to prepare a defense, particularly given the

limited nature of Risser’s testimony.

       {¶18} We also find Appellant was not prejudiced by the late disclosure of the

witness. As discussed earlier, Appellant had an opportunity to interview the witness the

day before he testified. Appellant did not request a continuance to further prepare for

trial. The witness’s testimony was on the limited issue of whether Appellant resided at

398 Newman. Further, Risser’s testimony was cumulative of the testimony of Charity

Griffith. Griffith identified Appellant’s house from a board diagramming the neighborhood.

She testified she saw Appellant five or more times from February, 2018, through August

1, 2018, mostly at the house. She testified she cleaned the house for Appellant in

exchange for drugs, or for money.
Richland County, Case No. 2019 CA 0025                                             8


      {¶19} We find the trial court did not abuse its discretion in allowing Jonathan

Risser to testify. The assignment of error is overruled.

      {¶20} The judgment of the Richland County Common Pleas Court is affirmed.




By: Hoffman, J.
Gwin, P.J. and
Wise, John, J. concur
