State v. Banks ( 2021 )

[Cite as State v. Banks, 2021-Ohio-3312.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
: Case No. 2020AP080018
:
SIMEON BANKS :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County
Court of Common Pleas, Case No.
2019CR010036
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: September 20, 2021
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
RYAN STYER MICHAEL R. PUTERBAUGH
TUSCARAWAS CO. PROSC. 4096 Holiday St. NW
125 East High Ave. Canton, OH 44718
New Philadelphia, OH 44663
Tuscarawas County, Case No. 2020AP080018 2
Delaney, J.
{¶1} Appellant Simeon Banks appeals from the August 19, 2020 Judgment Entry
on Sentencing of the Tuscarawas County Court of Common Pleas. Appellee is the state
of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} The following evidence is adduced from the record of appellant’s jury trial.
{¶3} On October 5, 2018, Ptl. James Miller of the New Philadelphia Police
Department observed a red SUV pass his vehicle. Appellant was seated in the front
passenger seat and Miller believed appellant had an outstanding felony arrest warrant.
Miller followed the SUV to a Speedway gas station where the vehicle stopped and three
occupants got out. Miller confirmed the existence of appellant’s arrest warrant. In the
meantime, appellant returned to the vehicle and got into the driver’s seat. A female
occupant, later identified as Chasity Arthurs, got into the front passenger seat. The third
occupant of the SUV did not return to the vehicle.
{¶4} Appellant drove away from the Speedway parking lot and Miller traffic-
stopped the SUV. Miller’s cruiser camera captured the traffic stop and the video was
played at trial as appellee’s Exhibit A. Miller approached the vehicle and had a brief
conversation with appellant while he waited for backup to arrive. Upon arrival of backup,
Miller removed appellant from the SUV and patted him down. Miller found a small Pyrex
container in the front pocket of appellant’s hoodie which contained a white substance.
Miller testified that appellant said something to the effect of, “Those are my vitamins,” or
described the substance as “fiber.”
Tuscarawas County, Case No. 2020AP080018 3
{¶5} Miller handed the container to another officer on the scene, Captain
Dusenberry, who placed the container on top of the vehicle. Appellee’s Exhibit C is a
photo of the container found in the pocket of appellant’s hoodie during the pat down
search; the container is round and has what was described at trial as a “teal” colored lid.
{¶6} Miller proceeded to arrest appellant on the outstanding warrant.
{¶7} Miller brought the container back to his cruiser to secure it and placed it on
the floorboard of his vehicle.
{¶8} The third original passenger in the SUV was identified as Christina Radtke.
She also had a felony arrest warrant and was eventually located at the Speedway gas
station. Miller waited outside a restroom at the gas station and heard two people talking;
Arthurs stepped out of the restroom and Radtke remained inside. Radtke was eventually
arrested on the warrant. Police searched the restroom trash can and found a green
Crown Royale bag containing a small plastic container which appeared to contain drug
residue and a pipe. Appellee’s Exhibit F is a photo of the green Crown Royale bag and
the glass pipe found inside. Appellee’s Exhibit B is a photo of the plastic container,
residue, and what appears to be a plastic straw. This plastic container is square and has
a green lid.
{¶9} The container seized from appellant is listed as Item Number 1 on appellee’s
Exhibit H, the New Philadelphia Police Department Property Submission Form. The
container found in the Crown Royale bag is listed as Item Number 2. The items were
placed into evidence and submitted to BCI. A forensic scientist tested the white powder
in Item 1 and found it to be methamphetamine in the amount of 9.92 g +/- 0.04 g.
Appellee’s Exhibit G is the laboratory report from BCI.
Tuscarawas County, Case No. 2020AP080018 4
{¶10} Appellant was charged by indictment with one count of aggravated drug
possession (methamphetamine in an amount equal to or greater than 3 grams) pursuant
to R.C. 2925.11(A) and (C)(1)(b), a felony of the third degree. Appellant entered a plea
of not guilty and the matter proceeded to trial by jury. Appellant was found guilty as
charged. Appellant was sentenced to a prison term of 24 months at a subsequent
sentencing hearing.
{¶11} Appellant now appeals from the trial court’s judgment entry of sentence
dated August 19, 2020.
{¶12} Appellant raises one assignment of error:
ASSIGNMENT OF ERROR
{¶13} “THE TRIAL COURT COMMITTED AN ERROR WHEN IT FAILED TO
DECLARE A MISTRIAL BASED UPON THE STATE’S FAILURE TO COMPLY WITH
THE RULES OF DISCOVERY.”
ANALYSIS
{¶14} In his sole assignment of error, appellant argues the trial court should have
granted his motion for mistrial because appellee allegedly failed to comply with discovery
rules. We disagree.
{¶15} During the direct testimony of Ptl. Miller, as Miller testified to the chain of
custody of the evidence seized from appellant, the prosecutor began to introduce a
property submission form of the New Philadelphia Police Department labeled as
appellee’s Exhibit I. Defense trial counsel objected, arguing the form was never provided
in discovery despite numerous requests. Defense trial counsel stated “this,” i.e. the chain
of custody delineated on the form, was the basis of appellant’s defense, and moved for a
Tuscarawas County, Case No. 2020AP080018 5
mistrial because the property submission form was not disclosed. Appellee responded
that an incomplete property submission form had been in the prosecutor’s possession
throughout the case and was disclosed to appellant in discovery. The trial court denied
the motion for mistrial but excluded appellee’s Exhibit I as inadmissible.
{¶16} Upon our review of the record and the exhibits, we understand the issue as
follows. Appellee’s Exhibit H, which was admitted into evidence, is a copy of the New
Philadelphia Police Department Property Submission Form. Exhibit H lists the items
seized in the investigation, including the container with the teal lid found on appellant and
labeled as “Item 1.” The “Chain of Custody” portion at the bottom of Exhibit H is blank.
This is the Property Submission Form which was disclosed to appellant in discovery.
{¶17} Appellee’s Exhibit I, which was not admitted at trial, is a copy of the same
form as Exhibit H, but the “Chain of Custody” portion at the bottom is filled in. The Chain
of Custody portion indicates the date, item number, and officers who received submitted
pieces of evidence, received them, transported them to BCI, and returned them to the
New Philadelphia Police Department.
{¶18} We perceive appellant’s defense at trial to have been that Miller mixed up
the container he seized from appellant (teal lid) with the container he found in the green
Crown Royale bag in the women’s restroom trash can (green lid). Alternatively, appellant
argued that he believed the substance in the container was Benefiber, and/or the results
of the laboratory testing at BCI was compromised in some inexplicable way.
{¶19} Appellant argues, though, that he “built an entire defense around the
absence of the form,” implying his argument about the chain of custody was precluded by
appellee’s failure to produce the completed form. We have reviewed appellee’s Exhibit
Tuscarawas County, Case No. 2020AP080018 6
I, however, and agree with appellee that the chain of custody notations fail to reveal any
new information. Instead, the form indicates the dates upon which Miller submitted the
evidence; the date the evidence was removed for transport to BCI for testing; the date the
evidence was returned to the New Philadelphia Police Department; and the date the
evidence was ultimately transported to court for trial. Movement and handling of the
evidence was documented elsewhere, i.e. in the police reports and BCI laboratory
reports, and each officer and forensic scientist in the chain of custody testified about his
or her handling of the evidence, with the exception of the evidence technician who
packaged the evidence for submission to BCI.
{¶20} Before the trial court, appellant argued appellee failed to disclose the
completed version of the form in accord with Crim.R. 16. Defense trial counsel moved
for a mistrial upon appellee’s attempted admission of Exhibit I, including the completed
Chain of Custody portion. In response to the motion for mistrial, the prosecutor stated
appellee’s Exhibit H was the version of the property form in his possession prior to trial;
appellee’s Exhibit I was an updated version brought to the courtroom accompanying the
evidence transported by the New Philadelphia Police Department.
{¶21} The trial court sustained appellant’s objection to the introduction of
appellee’s Exhibit I because it was not provided to appellant in a timely manner, but
overruled the motion for mistrial. Appellant now argues this decision was an abuse of
discretion. A trial court's decision on discovery violations is reviewed under an abuse-of-
discretion standard. State v. Hassinger, 5th Dist. Ashland No. 13-COA-038, 2014-Ohio-
3214, ¶ 15, citing State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966. In order to find
an abuse of discretion, we must determine the trial court's decision was unreasonable,
Tuscarawas County, Case No. 2020AP080018 7
arbitrary or unconscionable and not merely an error of law or judgment. Id., citing State
v. Adams, 62 Ohio St.2d 151 (1980).
{¶22} Crim.R. 16 governs discovery and inspection. Subsection (L)(1) 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.
{¶23} Ordinarily, a trial court must impose the least severe sanction for a
discovery violation that is consistent with the purposes of the rules of discovery. State v.
Davis, 5th Dist. Stark No. 2003CA00198, 2004-Ohio-3527, ¶ 43, citing City of Lakewood
v. Papadelis, 32 Ohio St.3d 1, 511 N.E.2d 1138 (1987), syllabus. In State v. Joseph, 73
Ohio St.3d 450, 458, 1995-Ohio-288, 653 N.E.2d 285, the Ohio Supreme Court
articulated the standard for reversals in the context of discovery violations, stating that:
“Prosecutorial violations of Crim.R. 16 are reversible only when there is a showing that
(1) the prosecution's failure to disclose was a willful violation of the rule, (2) foreknowledge
of the information would have benefited the accused in the preparation of his defense,
and (3) the accused suffered some prejudicial effect.”
{¶24} Appellant argues the appropriate resolution of the discovery violation should
have been a mistrial. Mistrials need to be declared only when the ends of justice so
Tuscarawas County, Case No. 2020AP080018 8
require and a fair trial is no longer possible. State v. Davis, 5th Dist. Stark No.
2003CA00198, 2004-Ohio-3527, ¶ 35, supra, citing State v. Franklin, 62 Ohio St.3d 118,
127, 580 N.E.2d 1 (1991). The standard of review for evaluating a trial court's decision to
grant or deny a mistrial is abuse of discretion. State v. Sage, 31 Ohio St.3d 173, 182, 510
N.E.2d 343 (1987).
{¶25} Upon our review of the entire record, we conclude the trial court did not
abuse its discretion in denying appellant’s motion for a mistrial. It is apparent that the trial
court believed the prosecution's explanation for the delay in the disclosure of the evidence
and found no willful discovery violation by appellee. Appellant has not established how
possession of Exhibit I would have provided any additional foreknowledge that would
have benefited preparation of his defense; the Chain of Custody form notates information
available throughout the remainder of discovery. The evidence was seized, processed,
submitted to BCI for testing, and returned. Finally, appellant has failed to establish any
prejudicial effect arising from the discovery violation. Appellant’s argument at trial was,
e.g., that Miller confused the two containers before they were submitted into evidence, or
that BCI somehow contaminated the sample during testing. We therefore fail to discern
how this discovery violation prejudiced appellant in the preparation of his defense. The
trial court did exclude Exhibit I from admission at trial.
{¶26} We conclude that the trial court's sanction was not an abuse of discretion.
We agree with appellee that the information contained in the completed Chain of Custody
form was readily available throughout other documentation provided in discovery. Under
the circumstances, we cannot say that denying the motion for a mistrial and instead
excluding the evidence was an unreasonable sanction.
Tuscarawas County, Case No. 2020AP080018 9
{¶27} Appellant’s sole assignment of error is thus overruled.
CONCLUSION
{¶28} Appellant’s sole assignment of error is overruled and the judgment of the
Tuscarawas County Court of Common Pleas is affirmed.
By: Delaney, J.,
Hoffman, P.J. and
Wise, Earle, J., concur.