State v. Addiego ( 2024 )

[Cite as State v. Addiego, 2024-Ohio-1849.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HENRY COUNTY
STATE OF OHIO,
CASE NO. 7-23-09
PLAINTIFF-APPELLANT,
v.
TYLER ADDIEGO, OPINION
DEFENDANT-APPELLEE.
Appeal from Henry County Common Pleas Court
Trial Court No. 21CR048
Judgment Reversed and Cause Remanded
Date of Decision: May 13, 2024
APPEARANCES:
Gwen Howe-Gebers for Appellant
Brian F. Russo for Appellee
Case No. 7-23-09
ZIMMERMAN, J.
{¶1} Plaintiff-appellant, the State of Ohio, appeals the July 10, 2023
judgment of the Henry County Court of Common Pleas dismissing the criminal
indictment against defendant-appellee, Tyler Addiego (“Addiego”). For the reasons
that follow, we reverse.
{¶2} This case stems from a years-long federal and state investigation of a
criminal-drug-trafficking enterprise, which culminated in the indictment of 12
individuals—including Addiego and his co-defendant, Micah Gunther (“Gunther”).
(See App. Case No. 7-23-08). Addiego and Gunther, residents of California, were
alleged to have engaged in a criminal-drug-trafficking enterprise that intersected
through Henry County, Ohio. According to the State, Gunther and Addiego
orchestrated the members of the criminal-drug-trafficking enterprise to travel to
Indiana through Henry County to facilitate the delivery of drugs or currency on
behalf of the enterprise. The State alleged that Gunther collaborated with Brian
Ochs (“Ochs”)—a cooperating witness of the State—in the criminal-drug-
trafficking enterprise in which Gunther and Ochs coordinated the activities of the
enterprise, including the supply and distribution of marijuana and the return of the
drug proceeds from Ohio to California. The State further alleged that, as part of the
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criminal-drug-trafficking enterprise, Gunther directed Addiego to Toledo to assist
with Gunther’s drug-trafficking activities to monitor Ochs.
{¶3} On March 24, 2021, the Henry County Grand Jury indicted Addiego on
a single count of engaging in a pattern of corrupt activing in violation of R.C.
2923.32(A)(1), a second-degree felony. In addition to Addiego and Gunther, the
Henry County Grand Jury also indicted Derek Goeckerman (“Goeckerman”), Lorn
Justice (“Justice”), Dustin Hall (“Hall”), Christopher Seacott (“Seacott”), Khalid
Nasirdeen (“Nasirdeen”), Ian Hoffman (“Hoffman”), Nathan Mowery (“Mowery”),
Michael Waldvogel (“Waldvogel”), Michael Schrickel (“Schrickel”), and Aaron
Ivory (“Ivory”). Ochs and another cooperating witness for the State, Yousef
Mahmoud (“Mahmoud”), were not indicted.
{¶4} Addiego appeared for arraignment on April 19, 2021 and entered a plea
of not guilty. That same day, Addiego filed a discovery acknowledgement in the
trial court indicating that he received a “cd/dvd” marked “counsel only.” (Doc. No.
8).
{¶5} On October 4, 2021, Addiego filed a motion requesting “all discovery,”
including all “material related to [Ochs]”; the “[i]dentity of other Cooperating
Witnesses and Sources of Information”; “[a]ny follow up investigative reports or
DEA 6’s”; a “[c]opy of organizational chart referenced in DEA report of August 12,
2020”; and “[u]nredacted reports” since “[m]any of the DEA 6s are heavily redacted
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concerning percipient witnesses and their interaction’s with [Addiego].” (Doc. No.
19).
{¶6} On February 7, 2022, Addiego filed a motion to sever his case from
Gunther’s case for purposes of trial, which the trial court denied on March 2, 2022.
{¶7} Also on February 7, 2022, Addiego filed a motion requesting that the
State “provide * * * all statements, text messages and handwritten notes made by
[Ochs] because his statements are exculpatory and known to be the result of law
enforcement coercion,” which the trial court granted on March 7, 2022. (Doc. No.
23).
{¶8} On March 9, 2022, Addiego filed a discovery acknowledgement in the
trial court indicating that he received a “DVD with [Nasirdeen’s] cell phone calls.”
(Doc. No. 32).
{¶9} On September 8, 2022, the State filed a notice in the trial court that it
“provided the plea papers of those co-defendants who may be testifying on behalf
of the State of Ohio” as well as “information recently received from the DEA
concerning potential ‘other acts’ information of another cooperating witness.”
(Doc. No. 41).
{¶10} On September 14, 2022, Addiego requested that the trial court order
“the State to reveal the identity and location of confidential informants employed in
the * * * case.” (Doc. No. 44). On September 26, 2022, the State filed its
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memorandum in opposition to Addeigo’s motion. Specifically, the State requested
that the trial court authorize it to withhold the identities of confidential informants
Crim.R. 16(D) “until the State determines that this person is a necessary witness for
trial.” (Doc. No. 48). The trial court granted Addiego’s motion on September 27,
2022 and ordered the State to produce information related to any confidential
sources employed in the case (except for “the present location, address, and phones
numbers of the informants”). (Doc. No. 49). Importantly, the trial court ordered
“that the Confidential Sources be available for interview outside the presence of
agents on or before October 10, 2022” but permitted the State to withhold “the
present location, address, and phone numbers of the informants.” (Id.).
Notwithstanding the trial court’s order, according to the State, “[n]o such attempt to
interview the confidential informants took place.” (Doc. No. 142).
{¶11} Also on September 14, 2022, Addiego filed a motion to dismiss the
case, arguing that the State failed to disclose “all statements, text messages and
handwritten notes made by the cooperating witness [Ochs].” (Doc. No. 43). On
September 23, 2022, the State filed a memorandum in opposition to Addiego’s
motion to dismiss. After determining that it “sufficiently addressed concerns
regarding discovery in its September 27, 2022 Order,” the trial court denied
Addiego’s motion to dismiss on October 12, 2022. (Doc. No. 56).
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{¶12} On September 14, 2022, Addiego filed a motion requesting that the
trial court disclose the grand jury testimony relative to his indicted case. The State
filed a memorandum in opposition to Addiego’s motion. After Addiego filed a reply
to the State’s memorandum in opposition, the trial court denied Addiego’s motion
on October 12, 2022.
{¶13} The State filed a supplemental discovery response on October 7, 2022
reflecting that it provided the additional “discovery ordered by the” trial court,
which Addiego acknowledged on October 11, 2022. (Doc. Nos. 51, 52).
{¶14} On October 20, 2022, Addiego filed a motion (and a supplemental
motion) to dismiss the case based on prosecutorial misconduct resulting from the
State’s “prevarications and willful refusal to comply fully with Rule 16 and [the trial
court’s] orders.” (Doc. No. 58). That same day, Addiego filed a motion requesting
that the trial court disqualify the prosecutor, alleging that
[t]he misconduct in this case includes, at least, the introduction into
court of false testimony or fraudulent evidence; the suppression or
destruction of evidence that might suggest the defendant’s innocence
or the guilt of another; abetting police misconduct such as entrapment;
jury or witness tampering, prejudicing the proceedings through out-
of-court publicity; failing to produce evidence as required by statute,
rule, or order; making misleading and inappropriate comments during
a proceeding or the trial; and failing to comply with any court order.
(Doc. No. 60).
{¶15} On October 25, 2022, Addiego filed a motion to compel the State to
disclose information related to Nasirdeen, a confidential informant and “indicted
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co-defendant who has entered a guilty plea and is waiting sentencing * * *, which
was not previously disclosed to the defense * * * .” (Doc. No. 65).
{¶16} On October 26, 2022, Addiego filed a motion requesting that the trial
court sanction the State for failing to reveal whether Ochs received any benefit from
the State in exchange for his testimony. On November 21, 2022, the State filed a
memorandum in opposition to Addeigo’s motion.
{¶17} On October 27, 2022, the State filed its memorandum in opposition to
Addiego’s motions to disqualify the prosecutor, for sanctions, and to dismiss. The
State also filed a supplemental memorandum in opposition to Addiego’s motions
on November 17, 2022.
{¶18} On November 21, 2022, Addiego filed a motion notifying the trial
court “that he joins in co-defendant Gunther’s Renewed Motion to Compel
Informant Information and Motion for Sanctions dated and filed on November 18,
2022,” which the trial court denied. (Doc. No. 70).
{¶19} Following a October 31, 2022 hearing, the trial court on December 22,
2022 denied Addiego’s motions to disqualify the prosecutor, for sanctions, to
dismiss, and to compel after concluding that the prosecutor did not lie to the trial
court and that “any benefit Brian Ochs receives by testifying is a matter that must
be addressed at the jury trial.” (Doc. No. 71). Importantly, the trial court determined
that, “[s]hould [Addiego] believe there is discoverable information not included in
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a previous disclosure, he must first send a written request for the information to the
State prior to seeking a Motion to Compel and Sanctions” because the trial court
“does not have legal authority to dismiss a criminal case prior to trial on discovery
ground [sic] due to the State’s continuing duty to provide discovery.” (Id.).
{¶20} Ultimately, the trial court issued an order on April 5, 2023 prohibiting
the State from introducing “the discovery provided to [Addiego] on April 3, 2023”
because “[i]t was obtained to [sic] close to the trial date and its admission would be
prejudicial to [Addiego].” (Doc. No. 83). The State filed a motion on April 14,
2023 requesting that the trial court reconsider its decision “to not allow the
substitution of a document witness,” which the trial court denied that same day.
(Doc. No. 88).
{¶21} After Addiego verbally moved for the trial court to order the State to
produce statements of co-defendants on April 10, 2023, the State filed a
memorandum in opposition to Addiego’s motion on April 11, 2023. In its
memorandum, the State requested that the trial court “deny defendant’s request for
production of trial preparation notes of potential witnesses” since “Crim.R. 16 does
not require the State to provide ‘work product’ trial preparation, including those of
co-defendants, to defense counsel.” (Doc. No. 87). The trial court denied
Addiego’s motion on April 14, 2023.
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{¶22} Further, in its April 14, 2023 entry, the trial court concluded that the
State untimely provided Addiego the plea agreements of four co-defendants
(Mowrey, Justice, Goeckerman, and Nasirdeen). Consequently, the trial court
excluded those witnesses from testifying at trial. Likewise, the trial court excluded
the testimony of two unindicted co-conspirators (Ashley Olszewski-Ivory and Eric
Goble) since their “proffers should have been obtained and disclosed prior to” April
13, 2023. (Doc. No. 90). Finally, the trial court permitted the testimony of 14
additional unindicted co-conspirators (Ochs, Mahmoud, Robert Shiekh, Aaron
Zombo, Brian Hahn, James Henderson, Jennifer Anderson, Andrew Noss, Matt
Brodbeck, Donald Christie, Shane Christie, David Wood, Zachary Shank, and
David Willegas) after the State “indicated that none of [those] individuals have any
agreement, understanding or expectation of consideration from the government in
exchange for their testimony.” (Id.).
{¶23} On April 18, 2023, the trial court issued a judgment entry vacating the
April 24, 2023 trial date after determining that “information contained in [BCI
Confidential Source] packets raised significant concerns that the State has not
complied with Crim.R. 16 and with the prior orders of the [trial court] particularly
in regards to consideration Mr. Brian Ochs has or expects to receive from the
government in exchanged [sic] for his testimony.” (Doc. No. 92).
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{¶24} The State filed its notice of appeal on April 24, 2023 from the trial
court’s April 5, 14, and 18, 2023 judgment entries. Thereafter, this court dismissed
the States’ appeal on June 5, 2023 after concluding that “there is no discretionary
appeal available * * * .” (Doc. No. 140).
{¶25} On April 21, 2023, the State filed additional discovery responses,
which had previously been recorded on an electronic-discovery portal known as
Matrix. (See Doc. Nos. 92-133).
{¶26} On April 24, 2023, Addiego filed a motion to dismiss the “case with
prejudice as a result of the State’s willful and intentional violations of the Ohio
Constitution, United States Constitution, Rules of Criminal Procedure, Rules of
Evidence, and Rules of Professional Conduct.” (Doc. No. 137). Specifically,
Addiego alleged that “Brian Ochs and Yousef Mohammad [sic] have been formal
BCI informants since January 2020 working and cooperating with the government
in exchange for consideration on their pending charges” but that he has not “been
provided discovery outlining what the ‘pending charges’ are * * * .” (Id.). Addiego
alleged that, notwithstanding the State’s statements to the contrary, the State
provided documents “related to Brian Ochs and Yousef Mohammed [sic], [which]
state in pertinent part that ‘[t]he [confidential source] has pending charges and is
providing services and information in consideration of those charges.’” (Emphasis
sic.) (Id., quoting Doc. No. 92, Exs. A, B).
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{¶27} On June 6, 2023, the State filed a memorandum in opposition to
Addiego’s motion to dismiss in which the State countered that, notwithstanding the
trial court’s order to provide the information in April 2023, it provided “two
documents * * * titled, ‘Completed Mahmoud BCI CS Establishment Packet
Provided on 4-17-22’ and ‘Completed Ochs BCI CS Establishment Packet Provided
on 4-17-22’” on April 17, 2022. (Doc. No. 142). According to the State, while it
did not have any formal agreements with Ochs or Mahmoud, it was “not denying
that consideration will be made as it relates to the prosecution of Ochs, Mahmoud
and cooperating witnesses” and that such information “was clearly documented in
the Confidential Source establishment packet.” (Id.). However, the State put forth
that it was its “position there [were] no agreements made with either confidential
source” and that the BCI Confidential Source packet materials “indicate the standard
form language ‘CS has pending charges and is providing services and information
in consideration of those charges.’” (Id.). In sum, the State represented that “[t]here
are no filed charges against either of these sources regarding the matter in which
they are testifying” and that “they will testify that there is ‘hope’ but no formal
agreements have been made with them,” which “[e]ven if * * * considered an
‘agreement,’ it only adds to the cumulative nature of cross examination material
available to the defense.” (Emphasis sic.) (Id.). Addiego filed his reply to the
State’s memorandum in opposition to his motion to dismiss on June 23, 2023.
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{¶28} On July 10, 2023, the trial court granted Addiego’s motion to dismiss
after concluding that “there have been willful Crim.R. 16 violations in this case.”
(Doc. No. 147). In particular, the trial court resolved that “the least severe sanction
that is consistent with the purpose of the rules of discovery” is dismissal of the case
because the trial court “issued multiple orders to compel discovery, * * * excluded
witnesses from testifying and * * * continued the case multiple times” but “Crim.R.
16 violations have continued to occur.” (Id.). Importantly, the trial court
determined that the State’s representations regarding the BCI Confidential Source
packet materials were disingenuous. Specifically, the trial court concluded that,
notwithstanding the State’s contention that it did not have any formal agreement
with Ochs or Mahmoud, it could not “interpret [the BCI Confidential Source packet
materials] any other way than what it explicitly says, that Brian Ochs and Yousef
Mahmoud are providing services and information in consideration of pending
charges.” (Id.). Further, the trial court reasoned that the “blank or whited out
documents [are] missing more than signatures” even though “[t]he State argue[d]
that [they] are simply blank copies of the Ohio BCI Confidential Source documents
* * * .” (Id.).
{¶29} On July 11, 2023, the State filed its notice of appeal from the trial
court’s July 10, 2023 judgment entry dismissing the indictment against Addiego. It
raises one assignment of error for our review.
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Assignment of Error
The Trial Court Erred And Abused Its Discretion In Dismissing
the Indictment.
{¶30} In its sole assignment of error, the State argues that the trial court
abused its discretion by dismissing the indictment in this case. Specifically, the
State contends that the trial court unreasonably, arbitrarily, and unconscionably
concluded that any Crim.R. 16 violation was willful since “the information was
known by the defense from numerous discovery responses and [because Addiego]
could not demonstrate how it truly prejudiced [him].” (Appellant’s Brief at 27).
Standard of Review
{¶31} This court reviews “a trial court’s decision on a motion to dismiss an
indictment for abuse of discretion.” State v. Hudson, 169 Ohio St.3d 216, 2022-
Ohio-1435, ¶ 19. An abuse of discretion suggests that a decision is unreasonable,
arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157-158 (1980).
Analysis
{¶32} In this case, the trial court granted Addiego’s motion to dismiss after
concluding that the State willfully violated Crim.R. 16 by failing to timely disclose
the information in the BCI Confidential Source packet materials. Specifically, the
trial court concluded that the State failed to timely disclose “letters indicating that
the CS (Briah Ochs and Yousef Mahmoud) have pending charges and are providing
services in consideration of those charges” as ordered by the trial court “on March
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7, 2022, September 27, 2022, and December 22, 2022 * * * .” (Doc. No. 147). The
trial court resolved “that the undisclosed material would have materially benefitted
the accused in the preparation of his defense and further [found] that [Addiego] was
prejudiced by the State’s failure to disclose this information.” (Id.). That is, the
trial court determined that “[t]he veracity of their statements and any consideration
they have received for their testimony is absolutely material to [Addiego’s] ability
to mount his defense.” (Id.). In sum, the trial court determined that “the least severe
sanction that is consistent with the purpose of the rules of discovery” is dismissal
because the trial court was “concerned that if this case, which has been pending for
over two years, is reset for another jury trial more vital discovery will surface on the
eve of or even after the trial.” (Id.).
{¶33} Crim.R. 16 provides the discovery rules for criminal
proceedings. State v. Engle, 166 Ohio App.3d 262, 2006-Ohio-1884, ¶ 7 (3d Dist.).
Generally, “[t]he United States Supreme Court has held that ‘the suppression by the
prosecution of evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution.’” State v. Glenn, 3d Dist. Marion No. 9-
19-64, 2021-Ohio-264, ¶ 20, quoting Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct.
1194 (1963). See also State v. Canankamp, 3d Dist. Auglaize No. 2-22-02, 2023-
Ohio-43, ¶ 68 (noting that Brady applies to the discovery of evidence after trial).
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“In recognition thereof, Crim.R. 16(B)(5) requires the prosecutor to disclose ‘[a]ny
evidence favorable to the defendant and material to guilt or punishment.’” Glenn at
¶ 20, quoting Crim.R. 16(B)(5). See also State v. Darrah, 12th Dist. Warren No.
CA2006-09-109, 2007-Ohio-7080, ¶ 26 (noting that Crim.R. 16 “codifies the
constitutional right of a defendant to receive from the prosecution” favorable
evidence under Brady).
{¶34} “‘However, “the principles of Brady do not apply unless the evidence
is material to mitigation, exculpation, or impeachment.”’” Glenn at ¶ 20, quoting
State v. Griffin, 3d Dist. Allen No. 1-03-31, 2004-Ohio-287, ¶ 9, quoting State v.
Keene, 81 Ohio St.3d 646, 650 (1998). “‘Evidence is material if there is a
“‘reasonable probability’” that the result of the trial would have been different had
the evidence been disclosed to the defense.’” Id. at ¶ 21, quoting State v. Osie, 140
Ohio St.3d 131, 2014-Ohio-2966, ¶ 153, quoting Kyles v. Whitley, 514 U.S. 419,
433, 115 S.Ct. 1555 (1995), quoting United States v. Bagley, 473 U.S. 667, 682, 105
S.Ct. 3375 (1985). “‘“A ‘reasonable probability’ is probability sufficient to
undermine confidence in the outcome.”’” Id., quoting Osie at ¶ 153, quoting State
v. Johnston, 39 Ohio St.3d 48 (1988), paragraph five of the syllabus.
{¶35} The failure to comply with Crim.R. 16 is governed by Crim.R.
16(L)(1) which provides, in its relevant part:
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
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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.
Crim.R. 16(L)(1). “‘[I]n determining the appropriate sanction, the trial court must
make an inquiry into the circumstances of the discovery violation.’” State v. Stiles,
3d Dist. Allen No. 1-08-12, 2009-Ohio-89, ¶ 45, quoting Engle at ¶ 8, citing
Lakewood v. Papadelis, 32 Ohio St.3d 1, 511 (1987), paragraph two of the syllabus.
“Further, ‘the trial court “must impose the least severe sanction that is consistent
with the purpose of the rules of discovery.”’” Id., quoting Engle at ¶ 8, quoting
Papadelis at paragraph two of the syllabus.
{¶36} The overriding purpose of Crim.R. 16 “is to prevent surprise and the
secreting of evidence favorable to one party”—that is, the purpose of the rule “‘is
to produce a fair trial.’” Engle at ¶ 8, quoting Papadelis at 3. Thus, the failure to
comply with Crim.R. 16 is error “only when there is a showing that (1) the
prosecution’s failure to disclose was willful, (2) disclosure of the information prior
to trial would have aided the accused’s defense, and (3) the accused suffered
prejudice.” State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, ¶ 131, citing
State v. Parson, 6 Ohio St.3d 442, 445 (1983).
{¶37} “The trial court’s decision regarding a Crim.R. 16 discovery sanction
is reviewed under an abuse of discretion standard.” Stiles at ¶ 45. Again, for this
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court to conclude that the trial court abused its discretion, the trial court’s
determination must be unreasonable, arbitrary, or unconscionable. Adams, 62 Ohio
St.2d at 157-158.
{¶38} On appeal, the State contends that the trial court abused its discretion
by dismissing the indictment in this case because any Crim.R. 16 discovery sanction
under the circumstances is unreasonable, arbitrary, or unconscionable. Specifically,
the State asserts that the trial court’s decision is unreasonable, arbitrary, or
unconscionable because it “took what [Addiego] indicated as true and went on to
insinuate that the State was attempting to hide evidence and/or was providing
[Addiego] with other documents” even though the State was not “hid[ing] anything
since nothing was whited out in the documents, and no agreements were made with
the [confidential sources].” (Appellant’s Brief at 26).
{¶39} Addiego disputes the State’s argument and contends that the trial court
did not abuse its discretion by dismissing the indictment in this case because it “took
incremental steps, including continuances and exclusions, until it could no [sic]
other action but dismissal.” (Appellee’s Brief at 24). That is, Addiego advocates
that “[t]he State forced the issue in its steadfast refusal to disclose information
related to benefits received by Mr. Ochs and Mr. Mahmoud despite being faced with
written documentation evidencing the fact that the two were cooperating in
consideration of pending charges.” (Id.). Addiego further contends that the State’s
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Crim.R. 16 discovery violations were willful since “the discovery violations had
been ongoing, despite repeated court orders.” (Id. at 21). According to Addiego,
the undisclosed evidence would have aided his defense because Ochs, “[a]s the
unindicted ringleader of the alleged criminal conduct, the impeachment of his
credibility was crucial to [Addiego’s] defense.” (Id. at 22). Finally, Addiego argues
that he was prejudiced by the State’s untimely disclosure of this evidence because
“he will be perpetually unable to use information of which he is unaware.” (Id. at
23).
{¶40} Based on our review of the record, we conclude that the trial court
abused its discretion by dismissing the indictment in this case because the trial
court’s Crim.R. 16 discovery sanction is unreasonable under the specific facts and
circumstances presented. Indeed, even if we assume without deciding that the State
willfully failed to comply with Crim.R. 16 (or any order issued by the trial court
under Crim.R. 16), there is no Crim.R. 16 error on behalf of the State. See State v.
Williams, 10th Dist. Franklin No. 16AP-350, 2018-Ohio-974, ¶ 22 (observing that
all three factors must be present to demonstrate a Crim.R. 16 discovery violation).
Critically, based on the facts presented, Addiego was not prejudiced in any
meaningful way by the State’s alleged belated disclosure. See State v. Harris, 10th
Dist. Franklin No. 21AP-678, 2023-Ohio-3994, ¶ 84 (resolving that Harris “was
[not] prejudiced in any meaningful way by the [State’s] belated disclosure”). See
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also Parson, 6 Ohio St.3d at 445 (analyzing that “there is nothing in the record
below to indicate that the state’s failure to disclose was a willful violation of Crim.R.
16 or anything other than a negligent omission on its part”). That is, contrary to
Addiego’s contention, the disclosure of the BCI Confidential Source packet
materials would not have aided his defense. See State v. Scoggins, 4th Dist. Scioto
No. 16CA3767, 2017-Ohio-8989, ¶ 41 (concluding that “disclosure of the document
prior to trial would not have aided Scoggins’s defense”).
{¶41} Specifically, at the center of the trial court’s decision dismissing the
indictment in this case is the “[d]ebriefing” memoranda from Brad Doolittle
(“Doolittle”), a special agent with Ohio’s Bureau of Criminal Investigation (“BCI”)
assigned to the DEA Task Force in Toledo, addressed to his supervisor apprising
(him) of the status of confidential sources—namely, Ochs and Mahmoud. Each
document identically states that “[t]he [confidential source] has pending charges and
is providing services and information in consideration of those charges.” (Doc. No.
115). According to the State, “this is standard form language used by [Doolittle] in
his [confidential source] packet forms.” (Appellant’s Brief at 25). Nevertheless,
regardless whether the memoranda reflect “standard form language,” the BCI
Confidential Source packet materials constitute tenuous impeachment evidence at
best. See, e.g., State v. Dearing, 8th Dist. Cuyahoga No. 78710, 2001 WL 957690,
*5 (Aug. 23, 2001). In other words, the memoranda are not evidence of an
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agreement between the State and Ochs and Mahmoud in exchange for their
cooperation. That is, while the BCI Confidential Source packet materials evidence
an understanding between Doolittle and Ochs and Mahmoud, this understanding
does not evidence the existence of any specific terms of an agreement between the
State and Ochs and Mahmoud. Critically, the impeachment value of the documents
is limited since only the prosecutor is authorized to agree to the specific terms of
such an agreement.
{¶42} Indeed, “‘R.C. 309.08(A) expressly grants the county prosecuting
attorney the authority to “prosecute, on behalf of the state, all complaints, suits, and
controversies in which the state is a party.”’” State v. McPherson, 4th Dist.
Washington No. 18CA4, 2019-Ohio-3482, ¶ 6, quoting State v. Heinz, 146 Ohio
St.3d 374, 2016-Ohio-2814, ¶ 16, quoting R.C. 309.08(A). See also State v.
Pittman, 6th Dist. Lucas No. L-15-1043, 2016-Ohio-617, ¶ 10 (“The prosecutor has
the sole discretion to determine whether to initiate criminal charges.”). “A county
prosecuting attorney is ‘the only person authorized to enter into a plea agreement
on behalf of the state with respect to crimes committed wholly’ in the county in
which the prosecuting attorney has been elected.” McPherson at ¶ 6, quoting State
v. Billingsley, 133 Ohio St.3d 277, 2012-Ohio-4307, ¶ 38. “Likewise, a county
prosecuting attorney has authority to enter into non-prosecution agreements which
‘arises, in part, from the discretion a prosecutor has in initiating a criminal
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prosecution.’” Id., quoting State v. Moore, 7th Dist. Mahoning No. 06-MA-15,
2008-Ohio-1190, ¶ 61.
{¶43} In general, law enforcement does not have the authority to enter into a
non-prosecution agreement. Pittman at ¶ 10. Specifically, “non-prosecution
agreements are governed by contract law,” and contract law dictates that “an agent’s
authority to contract on behalf of its principal is ordinarily limited to the scope of
the authority granted by the principal.” McPherson at ¶ 8, quoting State v. Parris,
6th Dist. Ottawa No. OT-14-015, 2014-Ohio-4863, ¶ 12 and Billingsley at ¶ 26.
Importantly, “‘an agent cannot through [the agent’s] own words and actions create
apparent authority to bind a principal where there is no evidence that the principal
permitted the agent to act as if [the agent] had authority.’” Id., quoting Billingsley
at ¶ 39.
{¶44} Decisively, there is no evidence in the record that the prosecuting
attorney authorized Doolittle to negotiate any agreement with Ochs or Mahmoud on
behalf of the State. See McPherson at ¶ 8 (analyzing that there was “no evidence
that the Washington County prosecuting attorney permitted [law enforcement] to
act as if they had authority to enter a non-prosecution agreement”). Consequently,
notwithstanding the “standard form language” conveyed in the memoranda,
Doolittle lacked authority to enter any such agreement on behalf of the Henry
County prosecutor. See id. at ¶ 10 (concluding “that even if members of law
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enforcement promised McPherson immunity from prosecution in exchange for
information, they lacked authority to enter into a non-prosecution agreement on
behalf of the Washington County Prosecutor”); Pittman at ¶ 10 (resolving that law
enforcement was “without authority to make decisions regarding whether to
prosecute Pittman” and that “even if Pittman had done what the officers asked of
him, there was no enforceable non-prosecution agreement”). Because the
memoranda are not evidence of any agreement between the State and Ochs or
Mahmoud, any belated disclosure of the evidence did not prejudice Addiego. See
State v. Sinbondit, 6th Dist. Fulton No. F-94-028, 1995 WL 112904, *3 (Mar. 17,
1995).
{¶45} Furthermore, the record reflects that the evidence was available to
Addiego. See State v. Collins, 8th Dist. Cuyahoga No. 108878, 2020-Ohio-4136, ¶
37 (analyzing whether Collins was prejudiced by the State Crim.R. 16 violation by
considering that Collins knew that the evidence existed). Importantly, at the
October 31, 2022 hearing, Doolittle testified that, even though BCI did not provide
BCI Confidential Source packet materials to the State for the protection of the
confidential sources, BCI made the packet materials available to Addiego for his
inspection. Even though Doolittle testified that BCI offered Addiego “the
opportunity to come review them * * * so it [did not] get distributed beyond the
scope,” Addiego did not seek to review those materials. (Oct. 31, 2022 Tr. at 43).
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{¶46} Moreover, according to the State, the trial court “ordered that the State
make the Confidential Sources available for interview outside the presence of the
agents on or before October 10, 2022” to permit Addiego “‘a one-time opportunity
to have an investigator conduct a Zoom or telephonic interview.’” (Doc. No. 142).
Critically, the record further reflects that Addiego did not interview Ochs or
Mahmoud. See Scoggins, 2017-Ohio-8989, at ¶ 41 (noting that Scoggins was not
prejudiced by any discovery violation because “[t]he State provided Scoggins with
[the State’s witness’s] name and contact information well in advance of trial” and
that “[t]he defense contacted [the witness] and conducted its own pretrial
interview”).
{¶47} Encompassing the memoranda, Addiego likewise complained that he
received discovery that included improperly redacted evidence—that is, he alleged
that he received evidence that had been redacted using white out. In response to
these allegations, the State explained that Doolittle “took a previously filled out
establishment packet that was no longer needed and whited out the filled-out
portions that contained the previous Confidential Sources [sic] information,” then
“made multiple copies of the ‘erased’ forms and used those forms for establishment
packages for future Confidential Sources, which include Ochs and Mahmoud.”
(Doc. No. 142). Critically, the State asserted that “[n]one of the content of the forms
was altered, erased, or manipulated as alleged by [Addiego].” (Id.). Indeed, our
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review of the record reveals that, although clumsy, the redacted forms do not reflect
any concealed evidence.
{¶48} For these reasons, we conclude that any failure by the State to comply
with Crim.R. 16 as to disclosure of the BCI Confidential Source packet materials
does not rise to the level of an error since Addiego was not prejudiced by the delayed
disclosure. See State v. Cheesbro, 4th Dist. Adams No. 95 CA 591, 1996 WL
107435, *4 (Mar. 4, 1996) (“The trial court’s decision to sanction appellant by
dismissing the charge was too severe given the nature of the infraction and the nature
of the evidence at issue.”). Thus, since we conclude that there was no Crim.R. 16
error, the trial court unreasonably imposed a discovery-violation sanction.
Consequently, we conclude that the trial court abused its discretion by dismissing
the indictment in this case. See State v. Zirkle, 4th Dist. Meigs No. 95 CA 21, 1997
WL 567938, *4 (Aug. 27, 1997); State v. Horton, 90 Ohio App.3d 157, 159-161
(10th Dist.1993).
{¶49} Accordingly, the State’s assignment of error is sustained.
{¶50} Having found error prejudicial to the appellant herein in the particulars
assigned and argued in its assignment of error, we reverse the judgment of the trial
court and remand for further proceedings.
Judgment Reversed
and Cause Remanded
WILLAMOWSKI, P.J. and MILLER, J., concur.
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