State v. Viera , 2011 Ohio 5263 ( 2011 )

[Cite as State v. Viera, 2011-Ohio-5263.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. John W. Wise, J.
-vs- :
:
CHRISTOPHER M. VIERA : Case No. 11CAA020020
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 09 CRI 09 0444B
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 12, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ERIC C. PENKAL JOHN R. CORNELY
140 North Sandusky Street 21 Middle Street
3rd Floor P.O. Box 248
Delaware, OH 43015 Galena, OH 43021-0248
Delaware County, Case No. 11CAA020020 2
Farmer, J.
{¶1} On September 18, 2009, the Delaware County Grand Jury indicted
appellant, Christopher Viera, on two counts of theft in violation of R.C. 2913.02, one
count of receiving stolen property in violation of R.C. 2913.51, and one count of burglary
in violation of R.C. 2911.12. Said charges arose from the theft of a motor vehicle and
then some items from the garage of Gary Glass.
{¶2} On January 21 and 25, 2011, appellant filed two motions to exclude the
testimony of Carla Durham, the state's forensic expert, citing discovery violations under
Crim.R. 16(K). Both motions were denied.
{¶3} A jury trial commenced on January 25, 2011. The trial court granted
appellant's Crim.R. 29 motion on one of the theft counts, theft of a motor vehicle. The
jury found appellant guilty of the remaining theft count and the receiving stolen property
count, and not guilty of the burglary count. By judgment entry of sentence filed January
27, 2011, the trial court sentenced appellant to an aggregate term of thirty months in
prison.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶5} "THE TRIAL COURT ABUSED ITS DISCRETION IN PERMITTING THE
STATE'S EXPERT WITNESS TO TESTIFY DESPITE THE FAILURE OF THE STATE
TO COMPLY WITH OHIO RULES OF CRIMINAL PROCEDURE RULE 16(K)."
Delaware County, Case No. 11CAA020020 3
II
{¶6} "THE TRIAL COURT ABUSED ITS DISCRETION IN PERMITTING THE
STATE TO CALL A WITNESS NOT DISCLOSED IN DISCOVERY."
III
{¶7} "THE TRIAL COURT ABUSED ITS DISCRETION BY PERMITTING THE
STATE TO INTRODUCE EXHIBITS THAT WERE NOT DISCLOSED IN DISCOVERY."
IV
{¶8} "THE CUMULATIVE ERRORS OF THE TRIAL COURT IN PERMITTING
THE STATE TO VIOLATE CRIMINAL RULE 16 ON MULTIPLE OCCASIONS
DEPRIVED APPELLANT OF HIS RIGHT TO A FAIR TRIAL, THE ASSISTANCE OF
COUNSEL, AND DUE PROCESS OF LAW AS GUARANTEED BY THE OHIO AND
UNITED STATES CONSTITUTION."
{¶9} Appellant's assignments of error center on the trial court's decision as it
relates to the language in newly adopted Crim.R. 16, and the issue of whether previous
case law permitting trial courts to have discretion in enforcing the rule are applicable
sub judice.
{¶10} Of procedural importance is the fact that appellant was indicted prior to the
effective date of newly enacted Crim.R. 16, July 1, 2010. The indictment was filed on
September 18, 2009, appellant was arraigned on April 19, 2010, the state's original
discovery was filed on April 19, 2010, and the state's supplemental discovery was filed
on July 30, 2010. These dates are important as they relate to Assignment of Error I
because Ms. Durham as an expert and her report as to fingerprints were disclosed to
appellant prior to the new rule date, but her report as to palm prints was filed after.
Delaware County, Case No. 11CAA020020 4
I
{¶11} Appellant claims the trial court erred in permitting Ms. Durham to testify
given the state's failure to follow the mandates of Crim.R. 16(K). Appellant claims he is
entitled to a new trial because Crim.R. 16(K) obviates the trial court's discretion to
sanction non-disclosure by any other remedy other than exclusion. We disagree.
{¶12} Crim.R. 16(K) states the following:
{¶13} "(K) Expert Witnesses; Reports. An expert witness for either side shall
prepare a written report summarizing the expert witness’s testimony, findings, analysis,
conclusions, or opinion, and shall include a summary of the expert’s qualifications. The
written report and summary of qualifications shall be subject to disclosure under this
rule no later than twenty-one days prior to trial, which period may be modified by the
court for good cause shown, which does not prejudice any other party. Failure to
disclose the written report to opposing counsel shall preclude the expert’s testimony at
trial."
{¶14} Appellant argues Ms. Durham should be excluded from testifying on both
the fingerprint identification and the palm print identification. The fingerprint
identification was disclosed prior to the effective date of Crim.R. 16(K). Although the
report was timely disclosed under the rule, it failed to include Ms. Durham's
qualifications. It is conceded that her curriculum vitae was provided the day of trial.
Given the fact that disclosure was made pursuant to the prior version of Crim.R. 16, we
find no error in failing to provide Ms. Durham's qualifications as it pertains to the
fingerprint report. Former Crim.R. 16(B)(1)(d) provided for the disclosure of the results
of scientific tests upon a defendant's request:
Delaware County, Case No. 11CAA020020 5
{¶15} "Upon motion of the defendant the court shall order the prosecuting
attorney to permit the defendant to inspect and copy or photograph any results or
reports of physical or mental examinations, and of scientific tests or experiments, made
in connection with the particular case, or copies thereof, available to or within the
possession, custody or control of the state, the existence of which is known or by the
exercise of due diligence may become known to the prosecuting attorney."
{¶16} The central issue remaining is whether the trial court erred in permitting
Ms. Durham to testify as to the palm print. It is undisputed that the disclosure of the
palm print report was untimely and violated Crim.R.16(K). Ms. Durham's qualifications
were also not timely given, but because she was already going to testify on the
fingerprint report as we found supra, we find this issue to be moot.
{¶17} The trial court attempted to afford appellant additional time if he needed to
prepare a defense to the palm print identification. Appellant declined the offer of a
continuance and demanded the exclusion of the evidence. Although appellant makes
much about a continuance being counted against him on speedy trial issues, we find
this to be a "red herring." Appellant had already signed a waiver of speedy trial, and
clearly the late discovery violation would have been counted against the state.
{¶18} The gravamen of this issue is whether Crim.R. 16(K) abolishes the trial
court's discretion. For the following reasons, we find it does not.
{¶19} Included in Crim.R. 16(K) referring to the twenty-one day rule is the
phrase "which period may be modified by the court for good cause shown, which does
not prejudice any other party." New subsection (L)(1) is essentially a codification of the
case law favoring the trial court's discretion in fashioning remedies to satisfy justice:
Delaware County, Case No. 11CAA020020 6
{¶20} "(L) Regulation of discovery.
{¶21} "(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."
{¶22} In this case, the trial court essentially did just that. It was clear from the
first report that palm prints were an issue and in fact, the co-defendant's palm print was
examined and did not match. Appellant's fingerprints matched those found at the crime
scene and as the report dated October 8, 2009 indicates, a palm print card for appellant
was not available.
{¶23} Given the circumstances sub judice, we find the trial court did not err in
permitting Ms. Durham to testify.
{¶24} Assignment of Error I is denied.
II, III
{¶25} Appellant claims the trial court erred in permitting Corrections Officer
Angela Nusser to testify given the state's failure to disclose her as a potential witness.
Appellant also claims the trial court erred in accepting several undisclosed exhibits
presented by the state.
{¶26} It is clear that the state erred in not disclosing witness Nusser to appellant.
While the state disclosed the name of another corrections officer to testify about
Delaware County, Case No. 11CAA020020 7
booking appellant into the jail, it was not until the morning of trial that the state disclosed
the correct officer was Officer Nusser. Officer Nusser testified to booking appellant into
the jail and taking his palm prints and fingerprints. T. at 261-263. Her testimony was
merely to establish the chain of custody. The complained of exhibits, introduced during
Officer's Nusser's testimony, were State's Exhibits 11 (the booking form), 12 (the
booking photograph), and 13 (a palm print and fingerprint card). We note the palm print
portion of State's Exhibit 13 was remarked as State's Exhibit 9A.
{¶27} Appellant did not object to State's Exhibit 9A or State's Exhibit 13. T. at
291-292, 293-294. We find no evidence of plain error. Crim.R. 52(B); State v. Long
(1978), 53 Ohio St.2d 91. In Assignment of Error I, we found no error in the trial court
permitting the palm print evidence. The fingerprint card was an extra card that was not
used for comparing appellant's fingerprints to the latents.
{¶28} Appellant also complains of the introduction of State's Exhibit 14 (BCI
fingerprint card). This exhibit was not provided to appellant prior to trial. Ms. Durham
testified State's Exhibit 14 was the fingerprint card she used for comparison to the latent
prints. T. at 275. Defense counsel did not object to this exhibit. T. at 294-295. In fact,
defense counsel was able to cross-exam Ms. Durham on the exhibit and point out that
appellant's social security number was listed incorrectly, thereby raising doubt about the
fingerprint card. T. at 283-286. We find no evidence of plain error.
{¶29} The sole issue is whether appellant was prejudiced by the late disclosures
of Officer Nusser testifying and State's Exhibits 11 and 12. Appellant's presence at the
crime scene was established via the testimony. Ms. Durham established appellant's
fingerprints matched the latent prints found at the scene. T. at 276. The co-defendant
Delaware County, Case No. 11CAA020020 8
identified appellant as being with him during the incident. T. at 132, 167. The existence
of the palm prints was merely cumulative. We find any error in the late disclosures to be
harmless. Crim.R. 52(A).
{¶30} Assignments of Error II and III are denied.
IV
{¶31} Appellant claims the cumulative errors (Assignments of Error I through III)
denied him a fair trial. We disagree.
{¶32} Having found no error in the assignments of error above, this assignment
of error is denied.
{¶33} The judgment of the Court of Common Pleas of Delaware County, Ohio is
hereby affirmed.
By Farmer, J.
Hoffman, P.J. and
Wise, J. concur.
_s/ Sheila G. Farmer_______________
_s/ William B. Hoffman_____________
_s/ John W. Wise_________________
JUDGES
SGF/sg 909
[Cite as State v. Viera, 2011-Ohio-5263.]
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
CHRISTOPHER M. VIERA :
:
Defendant-Appellant : CASE NO. 11CAA020020
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Delaware County, Ohio is affirmed. Costs to
appellant.
_s/ Sheila G. Farmer_______________
_s/ William B. Hoffman_____________
_s/ John W. Wise_________________
JUDGES