[Cite as State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966.]




       THE STATE OF OHIO, APPELLANT, v. DARMOND ET AL., APPELLEES.
        [Cite as State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966.]
The holding in Lakewood v. Papadelis 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” applies equally to
        discovery violations committed by the state and to discovery violations
        committed by a criminal defendant.
     (Nos. 2012-0081 and 2012-0195—Submitted January 9, 2013—Decided
                                    March 21, 2013.)
   APPEAL from and CERTIFIED by the Court of Appeals for Cuyahoga County,
                       Nos. 96373 and 96374, 2011-Ohio-6160.
                              _______________________
                               SYLLABUS OF THE COURT
The holding in Lakewood v. Papadelis, 32 Ohio St.3d 1, 511 N.E.2d 1138 (1987),
        paragraph two of the syllabus, 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” applies equally to
        discovery violations committed by the state and to discovery violations
        committed by a criminal defendant.
                                 __________________
        O’NEILL, J.
        {¶ 1} On the first day of a nonjury felony trial, during the testimony of
the first witness, the trial court became aware that the state had failed to disclose
to the defendant some evidence related to the case. The record is clear that the
                             SUPREME COURT OF OHIO




discovery violation was unintentional.        The court noted that the undisclosed
evidence “could be inculpatory or exculpatory,” but it never made a finding one
way or the other. On motion by the defense, the court declared a mistrial and
dismissed the charges with prejudice. The appellate court affirmed, concluding
that the trial court had not abused its discretion. For the reasons that follow, we
hold that the failure of the trial court to explore whether a less severe sanction was
appropriate was an abuse of discretion. We accordingly reverse the judgment of
the court of appeals and remand this cause to the trial court for further
proceedings.
       {¶ 2} In its analysis, the appellate court considered Lakewood v.
Papadelis, 32 Ohio St.3d 1, 511 N.E.2d 1138 (1987), which held that when
contemplating a sanction for a discovery-rule violation, a trial court must conduct
an inquiry into the surrounding circumstances and “must impose the least severe
sanction that is consistent with the purpose of the rules of discovery.” Id. at
paragraph two of the syllabus. The appellate court distinguished Lakewood from
this case on the basis that Lakewood involved a discovery violation committed by
a defendant rather than by the state.
       {¶ 3} The appellate court then certified a conflict on that issue because
other appellate courts have applied Lakewood to cases involving discovery
violations committed by the state. We accepted the conflict for review and also
accepted the state’s discretionary appeal.
       {¶ 4} We conclude that under the current discovery rules, Lakewood
applies to all discovery violations, including those committed by the state. A
contrary holding would be at odds with this court’s repeated guidance that trials
are to be conducted on a level playing field and Crim.R. 16’s requirement that
remedies for discovery violations apply to the defense and the prosecution
equally. We therefore answer the certified question in the affirmative.




                                          2
                                January Term, 2013




                         I. Facts and Procedural History
       {¶ 5} The two defendants-appellees in this case, Demetrius Darmond
and Iris Oliver, were jointly indicted in August 2010 on felony charges of
trafficking in drugs and possession of drugs, with specifications, and with
additional charges as to Darmond. Both defendants pled not guilty and waived
their right to a jury trial, electing instead to be tried by a judge. The state and the
defendants (represented by separate counsel) engaged in reciprocal discovery
upon the defendants’ demands for discovery pursuant to Crim.R. 16, and the case
proceeded to a bench trial.
       {¶ 6} After the parties’ opening statements, the state called its first
witness, a special agent with the Ohio Bureau of Criminal Identification and
Investigation (“BCI”). The BCI agent testified that on March 13, 2010, she was
on package-interdiction duty at a FedEx facility after receiving a tip from law-
enforcement authorities. She testified that she had discovered three suspicious
packages that day, all sent from Arizona, that were similar to each other. After a
drug-sniffing dog alerted to the packages, she obtained search warrants, opened
the packages, and found marijuana inside. The packages were addressed to three
different people at three different addresses.
       {¶ 7} One of those packages, which was addressed to defendant Oliver’s
street address but stated a name other than that of any resident of the address as
the addressee, was the basis for the indictment in this case. The agent placed the
marijuana back in that package and rewrapped it. The package was delivered to
Oliver’s address under surveillance by officers of the Cuyahoga County Sheriff’s
Office, who were accompanied by the BCI agent, on March 16, 2010. Defendant
Darmond later arrived at Oliver’s residence and put the package in his car. He
was then arrested.
       {¶ 8} The special agent was again on package-interdiction duty on
March 17, 2010, and discovered four more suspicious packages, all sent from



                                          3
                             SUPREME COURT OF OHIO




Arizona, that she opened after obtaining warrants. Each contained marijuana.
One of those packages was addressed to Oliver’s street address but stated a name
other than that of any resident as the addressee. The agent took that package to
the Cuyahoga County Sheriff’s Office.            That package was not delivered to
Oliver’s address, because Darmond had been arrested the previous day. The other
three packages found on March 17 were addressed to three separate addresses
different from any address on any of the other packages the agent had already
intercepted.
       {¶ 9} The agent prepared separate reports for each of the seven
packages. In the report relating to the package that was delivered to Oliver’s
address, the agent noted that a second package addressed to Oliver’s residence
and containing marijuana had been intercepted on March 17, but other than that,
the reports did not mention the other packages. The agent did not have the other
reports with her at trial, was not involved with any follow-up investigations that
might have taken place on the other five packages, and was able to remember
only sketchy details of the police action regarding those packages after she
discovered them. As to at least one other package, she believed that a controlled
delivery had been made to the address on the package and that an arrest had
resulted, but she was unsure of the specifics.
       {¶ 10} The record clearly supports the fact that the assistant prosecuting
attorney handling the case and both defense attorneys were unaware of the other
five packages prior to the BCI agent’s testimony. In response to the defendants’
pretrial discovery requests, the state had provided the BCI agent’s reports relating
to the two packages the prosecutor knew to exist and also provided other
information. After several sidebars during the agent’s testimony, the defense
attorneys moved the trial court to dismiss the case with prejudice due to the state’s
failure to disclose prior to the trial the interception of the five additional packages
and the reports regarding them.




                                          4
                                January Term, 2013




       {¶ 11} The defense attorneys renewed the motion to dismiss after the
agent completed her testimony, arguing that the undisclosed information was
exculpatory and that dismissal was the only remedy. In response, the prosecutor
asserted that the undisclosed packages were not exculpatory evidence. He also
emphasized that neither he nor the BCI agent had been trying to hide anything.
       {¶ 12} After a one-hour recess, the parties conducted discussions off the
record, and the case then resumed on the record. The prosecutor again argued in
opposition to the motions to dismiss that it was not clear that the undisclosed
packages were exculpatory, and he suggested that they may have instead been
inculpatory because further investigation may have shown them to be evidence
implicating the defendants in a scheme to distribute drugs.
       {¶ 13} After the defense attorneys again pressed for dismissal with
prejudice, the trial court reviewed the details of the situation. The court noted that
the undisclosed evidence “could be inculpatory or exculpatory” and then stated
that the full details regarding all seven packages and what occurred in the
aftermath of their discovery should have been supplied to the defense. The court
concluded the proceedings by declaring a mistrial and dismissing the case with
prejudice, barring the state from further indicting the defendants.
       {¶ 14} The Eighth District Court of Appeals affirmed, holding that the
trial court had not abused its discretion. State v. Darmond, 8th Dist. Nos. 96373
and 96374, 2011-Ohio-6160, ¶ 26. In considering the preference expressed in the
second syllabus paragraph of Lakewood for imposing the least severe sanction
consistent with the purpose of the discovery rules, the appellate court
distinguished Lakewood and declined to apply it. Id. at ¶ 15-18. The court in
essence interpreted that case’s holding as applying only to cases involving a
defendant’s discovery violation and did not extend it to cases involving a
discovery violation committed by the state.




                                          5
                            SUPREME COURT OF OHIO




       {¶ 15} The court of appeals determined that its resolution of the case
conflicted with the decisions of the Third Appellate District in State v. Engle, 166
Ohio App.3d 262, 2006-Ohio-1884, 850 N.E.2d 123 (3d Dist.), and the First
Appellate District in State v. Siemer, 1st Dist. Nos. C-060604 and C-060605,
2007-Ohio-4600, 2007 WL 2541121.             The court of appeals then certified a
conflict on the following issue: “Does the holding in Lakewood v. Papadelis, 32
Ohio St.3d 1, 511 N.E.2d 1138 (1987), apply equally to instances where the state
has committed a discovery violation?”
       {¶ 16} This court determined that a conflict exists and ordered the parties
to brief the certified issue (case No. 2012-0195), accepted jurisdiction over the
state’s discretionary appeal (case No. 2012-0081), and consolidated the two cases
for consideration, 131 Ohio St.3d 1497 and 1498, 2012-Ohio-1501, 964 N.E.2d
438 and 439.
                                   II. Analysis
       {¶ 17} Our consideration is guided by Crim.R. 16, which was extensively
amended on July 1, 2010. The pertinent provisions for purposes here are Crim.R.
16(A) and 16(L)(1). Crim.R. 16(A) provides:


               (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.




                                         6
                                 January Term, 2013




          {¶ 18} Crim.R. 16(L)(1) provides:


                 (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
          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} The overall objective of the criminal rules “ ‘is to remove the
element of gamesmanship from a trial.’ ” Lakewood, 32 Ohio St.3d at 3, 511
N.E.2d 1138, quoting State v. Howard, 56 Ohio St.2d 328, 333, 383 N.E.2d 912
(1978).     The purpose of the discovery rules “is to prevent surprise and the
secreting of evidence favorable to one party.” Id.
           A. The Conflict Issue: Does the Holding in Lakewood Apply to
                    Discovery Violations Committed by the State?
          {¶ 20} Sanctions for a Crim.R. 16 discovery violation are within the
discretion of the trial court and should be imposed equally, without regard to the
status of the offending party. The state has conceded that it should have disclosed
the existence of the other five packages prior to the trial pursuant to Crim.R. 16
and therefore does not contest the trial court’s conclusion that a discovery
violation occurred. The state asserts that the trial court’s order of dismissal with
prejudice was flawed because the trial court failed to consider whether less severe
sanctions were appropriate given the circumstances. We agree.




                                           7
                              SUPREME COURT OF OHIO




       {¶ 21} In Lakewood, the defendant committed a discovery violation by
failing to turn over his witness list to the city, and as a sanction, the trial court
excluded the testimony of all the defendant’s witnesses. 32 Ohio St.3d at 2, 511
N.E.2d 1138. In reviewing the propriety of the sanction, this court first noted that
the effect of the sanction was to deny the defendant his Sixth Amendment right to
present a defense. Id. at 4. This court then adopted the rationale of courts in other
jurisdictions that had reviewed similar situations and held that a trial court must
inquire into the circumstances surrounding a discovery violation, must balance the
competing interests, and “must impose the least severe sanction that is consistent
with the purpose of the rules of discovery.” (Emphasis added.) Id. at 5 and at
paragraph two of the syllabus.
       {¶ 22} Lakewood mentions several factors to be considered in the
balancing test: the extent of surprise or prejudice to the state if the testimony
were allowed, the impact that excluding the testimony would have on the trial,
whether the violation was willful or in bad faith, and the effectiveness of less
severe sanctions. Id. at 5.
       {¶ 23} A number of Ohio appellate courts, including the courts that issued
the judgments certified as being in conflict with the appellate court’s judgment in
this case, have determined that Lakewood applies to discovery violations
committed by the state just as it applies to discovery violations committed by the
defense.   For example, in Siemer, 2007-Ohio-4600, at ¶ 9, the First District
recognized that the balancing test in Lakewood was created in the context of a
defendant’s discovery violation, but concluded that the holding in Lakewood is
“equally applicable to cases involving discovery violations committed by the
state.” The Siemer court cited a number of decisions, from the majority of Ohio’s
appellate districts, in support of that conclusion. Id.
       {¶ 24} In Engle, 166 Ohio App.3d 262, 2006-Ohio-1884, 850 N.E.2d 123,
the Third District applied Lakewood to reverse a trial court’s decision dismissing




                                           8
                               January Term, 2013




the charges against the defendant as the sanction for a discovery violation
committed by the state. The Engle court observed that the trial court had failed to
determine “whether a less severe sanction would be appropriate” and failed to
“properly balance the need to impose a sanction with the purpose of the discovery
rules.” Id. at ¶ 10.
        {¶ 25} The appellate court in this case, however, declined to apply
Lakewood because this case involved a discovery violation by the state, not a
defendant. In so doing, the court relied on precedent from its district: State v.
Jones, 183 Ohio App.3d 189, 2009-Ohio-2381, 916 N.E.2d 828 (8th Dist.). Jones
reasoned that Lakewood should not be applied in cases involving the state’s
failure to provide discovery, because Lakewood was primarily concerned with the
accused’s ability to present a defense. Jones at ¶ 12, citing State v. Crespo, 7th
Dist. No. 03 MA 11, 2004-Ohio-1576, 2004 WL 615705, ¶ 11 (“the holding in
Lakewood is not directly applicable in cases where sanctions are imposed upon
the prosecution”).
        {¶ 26} We recognize that the analysis in Lakewood was driven to a large
extent by the consideration that the sanction imposed by the trial court effectively
deprived the defendant of his Sixth Amendment right to present a defense.
However, we do not agree that this consideration prevents the application of
Lakewood to a case in which it is the state that has committed a discovery
violation.
        {¶ 27} In State v. Parker, 53 Ohio St.3d 82, 86, 558 N.E.2d 1164 (1990),
which involved a discovery violation committed by the state, this court cited
Lakewood, 32 Ohio St.3d at 5, 511 N.E.2d 1138, with approval for the
propositions that a trial court must inquire into the circumstances of the alleged
violation of Crim.R. 16 and must impose the least severe sanction consistent with
the purpose of the discovery rules. Parker strongly supports the state’s position
on the certified issue.



                                         9
                             SUPREME COURT OF OHIO




       {¶ 28} Even if Parker left room for debate regarding whether Lakewood
applies to discovery violations committed by the state, the 2010 amendments to
Crim.R. 16 removed any doubt. Current Crim.R. 16 essentially places the state
and a criminal defendant who has filed a discovery demand on equal footing as a
trial court contemplates the imposition of the appropriate sanction for a discovery
violation.
       {¶ 29} Current Crim.R. 16(A) applies to “all parties in a criminal case,”
and “all duties and remedies” of the rule apply “to the defense and the prosecution
equally” and are “intended to be reciprocal.” (Emphasis added.) The Staff Notes
to the 2010 amendment to Division (A) of Crim.R. 16 state that the purpose of the
revisions “is to provide for a just determination of criminal proceedings and to
secure the fair, impartial, and speedy administration of justice.” To that end, the
Staff Notes point out, the current rule “expands the reciprocal duties in the
exchange of materials” and “balances a defendant’s constitutional rights with the
community’s compelling interest in a thorough, effective, and just prosecution of
criminal acts.”
       {¶ 30} In Lakewood, this court viewed the sanction imposed by the trial
court as extremely severe because it effectively deprived the defendant of the
ability to present a defense, and the court therefore held that the sanction should
not have been imposed without the trial court’s first weighing and rejecting the
feasibility of less severe sanctions. In the same way, the sanction of dismissal
with prejudice in this case is extremely severe because it forecloses the possibility
of further prosecution; such a sanction should not be imposed without a trial
court’s specifically weighing and rejecting the feasibility of less severe sanctions.
       {¶ 31} Crim.R. 16’s emphasis on equal and reciprocal treatment of parties
clarifies that the strong preference expressed in Lakewood for imposing the least
severe sanction that will further the purposes of the discovery rules is a critical
consideration that must be taken into account in any criminal case before a severe




                                         10
                                January Term, 2013




sanction is imposed for a discovery violation. We accordingly conclude that
Lakewood applies to discovery violations committed by the state, and we
therefore answer the certified question in the affirmative.
                   B. Did the Trial Court Abuse Its Discretion?
       {¶ 32} Having determined that Lakewood applies in this case, we next
consider whether the trial court abused its discretion in dismissing the case with
prejudice.
       {¶ 33} As we observed in State v. Parson, 6 Ohio St.3d 442, 445, 453
N.E.2d 689 (1983), a trial court has discretion in determining a sanction for a
discovery violation. This long-standing principle continues in force after the
recent amendments to Crim.R. 16.         Crim.R. 16(L)(1) is identical to former
Crim.R. 16(E)(3) in detailing a trial court’s authority to issue orders in the wake
of a party’s failure to comply with discovery obligations, and in particular
provides that the trial court may issue any order “it deems just under the
circumstances.” 34 Ohio St.2d lvii. See also Staff Notes to 2010 amendment to
Division (L) of Crim.R. 16 (“The trial court continues to retain discretion to
ensure that the provisions of the rule are followed. This discretion protects the
integrity of the criminal justice process while protecting the rights of the
defendants, witnesses, victims, and society at large”).
       {¶ 34} 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). An abuse of discretion includes a situation in which
a trial court did not engage in a “ ‘sound reasoning process.’ ” State v. Morris,
132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14, quoting AAAA Ents.,
Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157,
161, 553 N.E.2d 597 (1990). Abuse-of-discretion review is deferential and does
not permit an appellate court to simply substitute its judgment for that of the trial
court. Id.



                                         11
                            SUPREME COURT OF OHIO




       {¶ 35} In Parson, 6 Ohio St.3d 442, 453 N.E.2d 689, we established three
factors that should govern a trial court’s exercise of discretion in imposing a
sanction for a discovery violation committed by the prosecution.         The three
Parson factors a judge should consider are (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. Id. at syllabus. See also State v. Hale, 119
Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 115.
       {¶ 36} Several of the factors discussed in Lakewood are similar to those
expounded in Parson, including the degree of prejudice to the opposing party and
whether the violation was willful or in bad faith. See Lakewood, 32 Ohio St.3d at
5, 511 N.E.2d 1138.
       {¶ 37} The application of the three Parson factors to this case is unclear.
The record definitively shows that the discovery violation here was not willful,
but was instead unintentional. However, as to the second and third factors, in
light of the trial court’s stated acknowledgement that it was not possible to
ascertain whether the undisclosed information was exculpatory or inculpatory, it
is not at all clear that foreknowledge of the information would have benefited the
defense or that there was prejudice.
       {¶ 38} In addition to the Parson factors, Lakewood also focused on the
effectiveness of less severe sanctions as an important factor in the balancing test.
Id. at 5. The trial court did not indicate that it had considered whether a less
severe sanction than a dismissal with prejudice would have accomplished the
purposes of the discovery rules. While the trial court’s decision was generally in
accord with earlier holdings by the Eighth District, which declined to apply
Lakewood to discovery violations committed by the state, those holdings are
clearly at odds with the mandates of current Crim.R. 16. To the extent that this




                                        12
                                January Term, 2013




position may have been justifiable under former Crim.R. 16, the current rule
makes clear that that is no longer the proper view.
        {¶ 39} The state opposed the defendants’ motions to dismiss on several
grounds, including that the evidence that was not disclosed was not particularly
material to the defendants’ case and that there was a substantial possibility that
the undisclosed evidence could have been inculpatory rather than exculpatory.
Although it would have been helpful for the state in opposing the dismissal
motions to offer the trial court specific alternatives to dismissal with prejudice,
the trial court nevertheless should not have dismissed this case with prejudice
without first giving the parties the opportunity to develop the record regarding the
other packages and then weighing the relevant factors.
        {¶ 40} Although we are not mandating a specific procedural course of
conduct in this case, we note that rather than dismissing the case with prejudice,
the trial court could have continued the case to allow further inquiry into the
details regarding the other packages. See Lakewood, 32 Ohio St.3d at 5, 511
N.E.2d 1138 (a continuance should be ordered if it is feasible and would allow for
an opportunity to minimize any surprise or prejudice caused by the discovery
violation). This was a bench trial, and the defendants were out on bond. Clearly,
a continuance to clear up the facts of the discovery violation would have been a
feasible alternative.
        {¶ 41} Based upon the above analysis, we conclude that the trial court
abused its discretion.    We emphasize that we do not hold that a discovery
violation committed by the state can never result in the dismissal with prejudice
of a criminal case.      That option remains available when a trial court, after
considering the factors set forth in Parson and in Lakewood, determines that a
lesser sanction would not be consistent with the purposes of the criminal
discovery rules.




                                         13
                                SUPREME COURT OF OHIO




                                   III. Conclusion
       {¶ 42} For all the foregoing reasons, we hold that the holding in
Lakewood, 32 Ohio St.3d 1, 511 N.E.2d 1138, paragraph two of the syllabus, 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”
applies equally to discovery violations committed by the state and to discovery
violations committed by a criminal defendant. Applying that holding to this case,
we determine that the trial court abused its discretion.
       {¶ 43} We therefore reverse the judgment of the court of appeals and
remand the cause to the trial court for further proceedings consistent with this
opinion.
                                                                 Judgment reversed
                                                               and cause remanded.
       O’CONNOR, C.J., and O’DONNELL, LANZINGER, KENNEDY, and FRENCH,
JJ., concur.
       PFEIFER, J., dissents.
                                 __________________
       PFEIFER, J., dissenting.
       {¶ 44} We need look no further than Crim.R. 16(L)(1) to decide this case.
The rule states:


       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




                                         14
                                 January Term, 2013




       material not disclosed, or it may make such other order as it deems
       just under the circumstances.


This court’s only inquiry should be whether the trial court abused its discretion in
making an order it deemed “just under the circumstances.” The trial court gave
detailed reasoning for its dismissal of the case against the defendants, and there is
no reason for this court to overturn its ruling.
                          The Inapplicability of Lakewood
       {¶ 45} Lakewood v. Papadelis, 32 Ohio St.3d 1, 511 N.E.2d 1138 (1987),
has no application in this case. In Lakewood, this court addressed a trial court’s
discovery sanction that excluded all the witnesses the defendant had intended to
call at trial. This court found that “the effect of the sanction of exclusion imposed
on [the defendant] was to deny him the right to present a defense.” Id. at 4. The
court stated that “exclusion may infringe on a criminal defendant’s Sixth
Amendment right to present a defense, particularly where, as in this case, all the
defendant’s witnesses are excluded.” Id. at 5.
       {¶ 46} In Lakewood, this court looked to other states’ jurisprudence on the
exclusion of witnesses in determining whether the trial court’s sanction had been
too harsh:


               The courts of other states, when presented with the claim
       that exclusion of a criminal defendant’s witnesses is too harsh a
       sanction, have held that the trial court must make an inquiry into
       the surrounding circumstances prior to excluding a party’s
       witnesses. Before imposing the sanction of exclusion, the trial
       court must find that no lesser sanction would accomplish the
       purpose of the discovery rules and that the state would be
       prejudiced if the witnesses were permitted to testify.



                                          15
                             SUPREME COURT OF OHIO




(Emphases added.) Id.
       {¶ 47} It was because the sanction imposed in Lakewood was an
exclusion—which affected the defendant’s Sixth Amendment right to present a
defense—that this court concluded that the trial court should have considered
lesser sanctions: “In this case, the trial court did not indicate that it balanced the
state’s interests against [the defendant’s] Sixth Amendment right to present a
defense by considering any sanction other than excluding the testimony of his
witnesses.” Id.
       {¶ 48} Lakewood does not apply to every discovery sanction; it and the
cases it cites deal with the exclusion of evidence offered by a defendant. The
holding of Lakewood is that a court must apply a balancing test before imposing
discovery sanctions against a defendant that result in exclusion of testimony or
evidence, but that “[i]t is only when exclusion acts to completely deny [a]
defendant his or her constitutional right to present a defense that the sanction is
impermissible.” Id.
       {¶ 49} Which of the state’s constitutional rights was violated in this case?
       {¶ 50} There is no right of complete equality of treatment between the
state and a defendant, and the Constitution has seen to that. Is it unfair that the
state must prove its case beyond a reasonable doubt rather than by a
preponderance of the evidence, or that it must prepare its case quickly so that a
defendant may have a speedy trial? Defendants have special rights, and courts
must respect those.       In determining appropriate discovery sanctions for
defendants, courts must be careful to tailor the sanctions so they do not infringe
on a defendant’s constitutional rights. The state does not have those same rights;
thus, a trial court is not constrained to impose the least severe sanction possible to
preserve those nonexistent rights.




                                         16
                                January Term, 2013




                  The Trial Court Did Not Abuse Its Discretion
       {¶ 51} The trial court was not required to give the state the least severe
discovery sanction available. The trial court’s duty in this case was to simply
abide by Crim.R. 16(L)(1). It did, by making an order it deemed just under the
circumstances. It made clear that the fact that the state had failed to disclose to
the defendants that it had intercepted similar packages addressed to different
addressees meant that additional evidence—all the evidence related to those other
packages—was also not provided to the defendants.           In short, the agent’s
testimony had opened Pandora’s (FedEx) box. The trial court reasoned:


               I agree it could be inculpatory or exculpatory. The issue
       that I am faced with now is, as this witness testified, it became
       known to the State of Ohio * * * and now defense counsel, about a
       number of other packages that were recovered on the 13th and the
       17th of March of 2010.
               In looking at those, I’ll point out on the record there are a
       number of items which I believe would be important to the defense
       to have the ability to review or research that may be beneficial or
       may not be with respect to the case.
               Just pointing out some of those, even that the special agent
       pointed out, the addresses. She had all the addresses. She was not
       able to give those specifically because they were on different
       papers that she had back at her office.
               She was able to point out the names, again, similarities in
       names, relationships in names. I believe at least of the eight or of
       the seven, as I look at them, there may be seven females on all the
       names. Is there a possibility of a relationship? Are the addresses




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related?   Are the possibilities of prosecution or any of those
individuals indicted, are they charged?
       The special agent indicated that there was a single report
for each of those boxes, so possibly six additional reports that
would have been, I believe, needed to be provided in order for the
case to be looked at in a fashion that was fair to both of the
Defendants charged.
       Now, you take all of that that wasn’t given. Then you say,
Well, okay, if that wasn’t given, why should it have been given? Is
there any other connection? None of those names matched the
Defendants in this case, the addresses didn’t match the Defendants
in this case. And so why should the other information come in?
       I think the tie possibly comes, as the special agent
continued to testify, that 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.
       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.
       To then relate these seven boxes together, that 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.




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                You know, based on those indictments, did 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.
                Based on that and the testimony given by this witness that
        then became known to all of us here this morning and then later
        this afternoon, I am going to find that the State of Ohio is going to
        be barred from future prosecution of this case and that double
        jeopardy does attach.


        {¶ 52} The trial court made its decision after giving each side the
opportunity to argue whether dismissal was appropriate. It granted a recess at the
prosecutor’s request so that the prosecutor could research the issue. The state
never sought a continuance on the record, in contrast to the state’s request in one
of the cases in conflict with the court’s decision below, State v. Siemer, 1st Dist.
Nos. C-060604 and C-060605, 2007-Ohio-4600, 2007 WL 2541121, ¶ 4. In the
other conflict case, State v. Engle, 166 Ohio App.3d 262, 2006-Ohio-1884, 850
N.E.2d 123 (3d Dist.), the trial court never gave the state a chance to respond to
the defendant’s motion to dismiss. Finally, Demetrius Darmond had previously
been under indictment in case No. CR-535469 for the same charges. That case
was dismissed without prejudice by the state on August 9, 2010, “for further
investigation.” The state reindicted him in this case on August 11, 2010. State v.
Darmond, 8th Dist. Nos. 96373 and 96374, 2011-Ohio-6160, 2011 WL 5998671,
¶ 2, fn. 1.
        {¶ 53} Can we really say that the trial judge abused his discretion in
dismissing this case with prejudice? Should the trial judge have continued this
case until the attorneys for Darmond and his mother-in-law, Iris Oliver, chased



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down every lead that might have arisen from the undisclosed packages? Would it
be in the best interest of justice to routinely grant long continuances to correct
prosecutorial ball-fumbling? How many mistakes are prosecutors allowed in one
case before a continuance to allow for further investigation is deemed too weak a
sanction?
                                    Conclusion
       {¶ 54} The state made a mistake in this case, a mistake not easily or
quickly corrected.   Out of that mistake, the state has somehow become the
wronged party, and it asks this court to ensure that in future cases, trial courts
impose the least severe sanction possible upon the state when it innocently
withholds evidence from defendants. This request is based upon the fact that in
Lakewood, this court protected the constitutional rights of defendants by requiring
that discovery sanctions not infringe on a defendant’s right to present a defense.
The state’s premise is that the state and defendants are equals; but the fact is that
we have a Constitution because the state and individuals are not equal. The intent
of the discovery rules is to guarantee fair play between the state and the
defendant, not to change the nature of the game.
                              __________________
       William D. Mason, Cuyahoga County Prosecuting Attorney, and
Katherine Mullin, Assistant Prosecuting Attorney, for appellant.
       John P. Parker, for appellee Demetrius Darmond.
       Jeff Hastings, for appellee Iris Oliver.
       Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R.
Cummings, Assistant Prosecuting Attorney, urging reversal on behalf of amicus
curiae Ohio Prosecuting Attorneys Association.
                            ______________________




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