State v. Fair

[Cite as State v. Fair, 2014-Ohio-2788.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 13AP-901
v. : (C.P.C. No. 13CR-1026)
Gregory T. Fair, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on June 26, 2014
Ron O'Brien, Prosecuting Attorney, and Laura R. Swisher, for
appellee.
Siewert & Gjostein Co. LPA, and Thomas A. Gjostein, for
appellant.
APPEAL from the Franklin County Court of Common Pleas
O'GRADY, J.
{¶ 1} Defendant-appellant, Gregory T. Fair, appeals from a judgment of
conviction and sentence entered by the Franklin County Court of Common Pleas. For the
following reasons, we affirm in part and reverse in part.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Appellant was indicted on one count of fourth-degree felony theft and six
counts of fifth-degree felony theft, all in violation of R.C. 2913.02. The matter proceeded
to a jury trial where the following evidence was presented.
{¶ 3} William Marcum testified he and Ryan Cox are the co-owners of Columbus
Contracting Company ("CCC"). CCC replaces roofs that have suffered storm damage.
No. 13AP-901 2
Appellant was employed as a sales representative, and his job was to go door-to-door in
neighborhoods affected by storms to solicit business. Appellant would initiate contact
with customers and offer them roof inspections by CCC. If a customer was interested,
Marcum or Cox would inspect the roof. If the roof was damaged, appellant would discuss
options with the customer, such as contracting with CCC to replace the roof and help the
customer with the insurance claim process. Appellant was responsible for securing
contracts for roofing jobs. When a customer paid for CCC's services, he could pay through
the mail or submit payment to appellant for him to pass along to CCC. Appellant was
supposed to turn money from customers over to CCC within 24 hours.
{¶ 4} Cox corroborated Marcum's testimony about appellant's employment and
training. According to Cox, once a customer was in contract, that customer would deal
directly with appellant throughout the duration of the roofing job. Appellant was trained
if a customer submitted payment directly to him, "[i]mmediately upon receiving the
check, it was supposed to be taken to [CCC]. The * * * sales rep was not supposed to hold
that check on their person any longer than physically necessary." (Tr. Vol. III, 386.)
Appellant was also aware that all checks were to be made payable to CCC. Cox testified
about a particular customer, Earnest Tate. Tate came into CCC's office and showed Cox a
contract that Cox had never seen before. Appellant did not make CCC aware that Tate
was a customer. Tate complained that he paid appellant, but no work had been done.
Cox immediately launched an internal investigation, which revealed payment
discrepancies on a number of appellant's accounts. Appellant initially denied receiving
money from customers and not turning it over to CCC. Appellant eventually admitted
taking money from customers, yet he claimed the money was loaned to him. Cox and
Marcum shared the findings from their internal investigation with the Columbus Police
Department.
{¶ 5} Tate testified that appellant came to his house in June or July 2012 to
discuss CCC replacing his roof. Tate already had his insurance company inspect the roof,
and that company approved around $8,000, minus Tate's $1,000 deductible, for repairs.
Tate told appellant he wanted to keep $1,000 of his insurance money so he could replace
interior ceilings, which were also damaged due to his leaky roof. Tate signed a contract
presented to him by appellant. Tate received a check from his insurance company, and
No. 13AP-901 3
appellant drove Tate and his wife to the bank to cash it. The check was for "4,000 some
odd dollars." (Tr. Vol. I, 91.) Tate testified he kept $1,000 for his interior repairs, and he
gave the rest, in cash, to appellant as a payment under the contract for the roof repair at
his home. Tate denied that the money he gave appellant was a loan. Work never began
on the roof. Tate called appellant several times, and appellant stalled and provided
excuses. Finally, after six weeks or more, Tate went to CCC's office to complain. The
individuals he encountered at CCC told him they knew nothing about his situation.
{¶ 6} John Myers, Sr., testified he met appellant around July 2012. Appellant
said he was from CCC and they discussed replacing Myers' roof. Myers signed a contract,
and his roof was replaced one or two months later. Myers paid for the job with three
checks. Two were made payable to CCC, and the final installment of $2,100 was made
payable to appellant. Myers explained appellant offered him a discount if he made the
check payable to appellant. Myers' understanding was the $2,100 was payment to satisfy
his balance due to CCC. He did not think appellant was borrowing the money and
indicated it was not a loan. Myers found out that appellant did not use the money to pay
off his balance when CCC called him and requested a payment. CCC told Myers the
company did not receive his last installment.
{¶ 7} Brad Hennen testified appellant approached him in March or April 2012.
Appellant secured a contract between Hennen and CCC. Hennen made two payments to
CCC, but made a third check payable to appellant. Hennen testified appellant told him, "if
I made the final check directly out to him, he could apply these credits that he had
accumulated, and then he could zero out my balance with that check and the credits * * *.
That would take care of the deductible that I owed." (Tr. Vol. II, 203.) Hennen said the
check was not a loan to appellant. He intended the final payment go to CCC. Hennen's
roof was replaced, but CCC did not receive his final payment.
{¶ 8} Robert Johnson testified appellant approached him as a representative of
CCC. Johnson entered into a contract in April 2012, and CCC replaced his roof. Johnson
wrote three checks to pay for the job. The first two were made payable to CCC, and the
third check was made payable to appellant. Early on, appellant told Johnson that CCC
would give him $200 for each referral he made to a new customer. Johnson made three
referrals, so he expected $600. Appellant later told Johnson that CCC would not
No. 13AP-901 4
compensate him for the referrals, but appellant made Johnson a "promise" so appellant
would compensate him personally. (Tr. Vol. II, 228.) If Johnson made the last check
payable to appellant less what he expected for the referrals, appellant would put the
difference with the check and submit both payments to CCC. Johnson found out that his
last payment did not reach CCC because CCC called him and sent him an invoice.
Johnson denied loaning money to appellant.
{¶ 9} Michael Thurman testified appellant came to his house around July or
August 2012. Thurman signed a contract with CCC, and his roof was completed.
Thurman submitted two payments to CCC. The final payment for his roof, in the amount
of $1,500, was made by check payable to appellant. Thurman explained appellant offered
him a discount, which would come out of a bonus appellant was expecting. Appellant
would cash Thurman's check, combine it with some of appellant's bonus money, and
submit payment to CCC. Thurman believed he was paying off his balance due to CCC. He
did not think he was loaning money to appellant. Thurman found out appellant did not
pay CCC on his behalf when he received a call from Cox.
{¶ 10} Samuel Tambi testified he met appellant in May 2012 when appellant came
to his house and offered him a roof inspection. Tambi entered into contract with CCC and
work on his roof was completed. To satisfy the contract, Tambi wrote two checks payable
to CCC. Tambi made a third check for $2,500 payable to appellant. That amount was not
equivalent to the total still due under the contract, which was $3,195.15. Tambi explained
appellant told him appellant had credits built up with CCC that appellant would apply to
satisfy the remainder of the balance due. Tambi intended the third check to be payment
to CCC, and he wrote on the memo line: "Last installment for roofing." (Tr. Vol. III, 352.)
Tambi found out appellant did not put the last check toward the balance due to CCC when
Cox called him to discuss the matter.
{¶ 11} Appellant did not call any witnesses to testify at trial. The jury returned a
verdict finding appellant guilty of six counts of theft. The trial court entered a nolle
prosequi for the remaining count. Appellant was sentenced, and this appeal followed.
II. ASSIGNMENTS OF ERROR
{¶ 12} Appellant presents us with the following four assignments of error for our
review:
No. 13AP-901 5
FIRST ASSIGNMENT OF ERROR
APPELLANT'S CONVICTION WAS NOT SUPPORTED BY
THE SUFFICIENCY OF THE EVIDENCE IN VIOLATION OF
THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT TO THE U.S. CONSTITUTION AND
ARTICLE I, SECTIONS 1 & 16 OF THE OHIO
CONSTITUTION AND THE CONVICTION WAS ALSO
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
SECOND ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN SENTENCING THE
DEFENDANT, IMPROPERLY, TO CONSECUTIVE
SENTENCES ON COUNT NUMBERS 1 AND 3 OF THE
INDICTMENT, REVISED CODE §2929.11, §2929.12 AND
§2929.14.
THIRD ASSIGNMENT OF ERROR
THE ASSISTANT PROSECUTOR COMMITTED MIS-
CONDUCT, SERIOUSLY PREJUDICING SUBSTANTIAL
RIGHTS OF THE DEFENDANT AND AFFECTING THE
INTEGRITY OF THE JUDICIAL PROCEEDINGS, DURING
REBUTTAL CLOSING ARGUMENT BY INFERENCES THAT
THE DEFENSE ATTORNEY'S ARGUMENTS, THEORIES OR
CASE WERE NOT TRUTHFUL.
FOURTH ASSIGNMENT OF ERROR
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
IN DENYING THE MOTION FOR MISTRIAL SUBSEQUENT
TO THE TESTIMONY BY A WITNESS FOR THE
PROSECUTION WHICH EXPOSED A VIOLATION OF
DISCOVERY MANDATED BY RULE 16 OF THE RULES OF
CRIMINAL PROCEDURE.
III. DISCUSSION
{¶ 13} In his first assignment of error, appellant argues his convictions were not
supported by sufficient evidence and were against the manifest weight of the evidence.
We disagree.
{¶ 14} "Sufficiency of the evidence is a legal standard that tests whether the
evidence introduced at trial is legally sufficient to support a verdict." State v. Cassell, 10th
No. 13AP-901 6
Dist. No. 08AP-1093, 2010-Ohio-1881, ¶ 36, citing State v. Thompkins, 78 Ohio St. 3d
380, 386 (1997). In reviewing a challenge to the sufficiency of the evidence, an appellate
court must determine "whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt." State v. Jenks, 61 Ohio St. 3d 259 (1991), paragraph
two of the syllabus, superseded by constitutional amendment on other grounds as
recognized in State v. Smith, 80 Ohio St. 3d 89, 102 (1997).
{¶ 15} "While sufficiency of the evidence is a test of adequacy regarding whether
the evidence is legally sufficient to support the verdict as a matter of law, the criminal
manifest weight of the evidence standard addresses the evidence's effect of inducing
belief." Cassell at ¶ 38, citing State v. Wilson, 113 Ohio St. 3d 382, 2007-Ohio-2202, ¶ 25,
citing Thompkins at 386-87. "When a court of appeals reverses a judgment of a trial court
on the basis that the verdict is against the weight of the evidence, the appellate court sits
as a 'thirteenth juror' and disagrees with the factfinder's resolution of the conflicting
testimony." Thompkins at 387, citing Tibbs v. Florida, 457 U.S. 31, 42 (1982). " 'The
court, reviewing the entire record, weighs the evidence and all reasonable inferences,
considers the credibility of witnesses and determines whether in resolving conflicts in the
evidence, the jury clearly lost its way and created such a manifest miscarriage of justice
that the conviction must be reversed and a new trial ordered.' " Id., quoting State v.
Martin, 20 Ohio App. 3d 172, 175 (1st Dist.1983). This discretionary authority " 'should be
exercised only in the exceptional case in which the evidence weighs heavily against the
conviction.' " Id., quoting Martin at 175.
{¶ 16} Furthermore, " '[w]hile the jury may take note of the inconsistencies and
resolve or discount them accordingly, * * * such inconsistencies do not render defendant's
conviction against the manifest weight or sufficiency of the evidence.' " State v.
Gullick, 10th Dist. No. 13AP-317, 2014-Ohio-1642, ¶ 10, quoting State v. Nivens, 10th
Dist. No. 95APA09-1236 (May 28, 1996). "A jury, as the finder of fact and the sole judge
of the weight of the evidence and the credibility of the witnesses, may believe or disbelieve
all, part, or none of a witness's testimony." Id., citing State v. Antill, 176 Ohio St. 61, 67
(1964); State v. Jackson, 10th Dist. No. 01AP-973 (Mar. 19, 2002); State v. Chandler,
No. 13AP-901 7
10th Dist. No. 05AP-415, 2006-Ohio-2070, ¶ 13; State v. Raver, 10th Dist. No. 02AP-604,
2003-Ohio-958, ¶ 21.
{¶ 17} Appellant does not argue the state failed to present evidence establishing all
the elements of the theft offenses for which he was convicted. Instead, appellant argues
that a number of issues undermine his convictions and establish the jury clearly lost its
way. He focuses on inconsistencies between the testimony of Marcum and the testimony
of Cox and contends "conflicting testimony about standards and procedures with [CCC]
bears direct relevance to the conviction on Count 1 of the Indictment for Tate, because
[CCC] claimed to possess no documentation of a contract for him." (Appellant's Brief, 7-
8.) Appellant complains that copies of contracts admitted into evidence were blurry with
dates and dollar amounts the witnesses could not read and that no witness could testify
about the date and time appellant allegedly received payment. Further, there was no
testimony about any endorsements of the checks. Lastly, while appellant complains there
was no evidence presented to support he intended to permanently deprive the victims of
the money he collected, he also points out that he "admitted making a mistake to his
employer and [the police], as well as, numerous victims, including promises to repay
them." (Appellant's Brief, 9.) Essentially, appellant is arguing that the victims loaned him
money, which was one of his theories of defense at trial.
{¶ 18} Here, we find the inconsistencies regarding business operations testified to
by Marcum and Cox inconsequential. Marcum and Cox provided background about
appellant's employment, how the thefts came to light at CCC, and CCC's internal
investigation. The testimony of the six victims and the evidence presented through them
established the theft offenses. Also, CCC did not have record of the contract with Tate
because appellant did not provide the contract to his employer in accordance with normal
procedure. Therefore, we find the inconsistencies in Marcum and Cox's testimonies do
not undermine appellant's convictions.
{¶ 19} Appellant's comments about blurry copies of contracts and a lack of
testimony establishing dates, times, and dollar amounts are also unpersuasive.
Numerous witnesses testified that the events in question happened during 2012, and the
general time frame is not in dispute. The victims testified about amounts of money they
gave appellant, and copies of the checks were reviewed at trial and admitted into
No. 13AP-901 8
evidence; thus, whether or not the witnesses could read the dollar amounts off the
contracts is not particularly important. Appellant's comment that there was "no
testimony to any endorsements of the checks" suggests he believes the state did not
establish he cashed or deposited the checks. (Appellant's Brief, 8.) We disagree. All of
the victims who wrote checks payable to appellant testified none of the money arrived at
CCC. Copies of the checks admitted into evidence were front and back copies showing the
endorsements bearing appellant's signature. The jury also had copies of the contracts
with appellant's signature for comparison. Furthermore, appellant admits he promised to
repay some of the victims. Accordingly, we reject the notion that more specific testimony
about the endorsements of the checks was necessary.
{¶ 20} Finally, appellant claims he did not intend to permanently deprive the
victims of their money, and the money was loaned to him in exchange for a discount. The
evidence does not support appellant's position. All but one of the victims specifically
testified they did not intend to loan appellant the money; instead, they intended the
money go to CCC, and it never arrived. Additionally, the time frame that appellant began
to offer to pay the victims back largely coincides with the time he was being investigated
by CCC and the police. Appellant's contention that the money was loaned to him lacks
merit.
{¶ 21} After reviewing the entire record, we find a rational jury could have found
the essential elements of the crimes proven beyond a reasonable doubt. Accordingly,
appellant's first assignment of error is overruled.
{¶ 22} In appellant's second assignment of error, he alleges there were a number of
flaws in the sentencing process. Appellant argues one such flaw is that the trial court
neglected to make the findings required by R.C. 2929.14(C)(4) before imposing
consecutive terms of imprisonment upon appellant. The state does not argue the trial
court made the mandatory findings. Instead, the state points out that appellant did not
object to his sentence, and argues that we should not find plain error occurred during
sentencing. We reject the state's position and find that the trial court, in fact, did not
make the R.C. 2929.14(C)(4) finding before imposing consecutive terms. "It is established
in this district that 'when the record demonstrates that the trial court failed to make the
findings required by R.C. 2929.14(C)(4) before imposing consecutive sentences on
No. 13AP-901 9
multiple offenses, "appellant's sentence is contrary to law and constitutes plain error." ' "
State v. Revels, 10th Dist. No. 12AP-831, 2014-Ohio-795, ¶ 11, quoting State v. Ayers, 10th
Dist. No. 13AP-371, 2014-Ohio-276, ¶ 15, quoting State v. Wilson, 10th Dist. No. 12AP-
551, 2013-Ohio-1520, ¶ 18; State v. Boynton, 10th Dist. No. 12AP-975, 2013-Ohio-3794,
¶ 12; see also State v. Bailey, 10th Dist. No. 12AP-699, 2013-Ohio-3596, ¶ 46; State v.
Hunter, 10th Dist. No. 13AP-196, 2013-Ohio-4013, ¶ 9; State v. Castlin, 10th Dist. No.
13AP-331, 2013-Ohio-4889, ¶ 8-9; State v. Phipps, 10th Dist. No. 13AP-351, 2013-Ohio-
5546, ¶ 15; State v. Bender, 10th Dist. No. 12AP-934, 2013-Ohio-2777, ¶ 7.
{¶ 23} The trial court only specifically discussed appellant's criminal history before
sentencing him to serve consecutive terms. Therefore, the trial court fell short of its
obligation under R.C. 2929.14(C)(4), which "requires the trial court to make three
findings before imposing consecutive sentences: (1) that consecutive sentences are
necessary to protect the public from future crime or to punish the offender, (2) that
consecutive sentences are not disproportionate to the seriousness of the offender's
conduct and to the danger the offender poses to the public, and (3) that one of
the subsections (a), (b), or (c) apply." State v. Zonars, 10th Dist. No. 13AP-735, 2014-
Ohio-2023, ¶ 28, citing State v. Roush, 10th Dist. No. 12AP-201, 2013-Ohio-3162, ¶ 76.
Accordingly, we must remand this matter to the trial court to consider whether
consecutive sentences are appropriate, pursuant to R.C. 2929.14(C)(4), and, if so, to enter
the proper findings on the record. Revels at ¶ 11, citing Boynton at ¶ 12; State v. Corker,
10th Dist. No. 13AP-264, 2013-Ohio-5446, ¶ 38, citing State v. Bass, 10th Dist. No. 12AP-
622, 2013-Ohio-4503, ¶ 44.
{¶ 24} Because the trial court's failure to comply with R.C. 2929.14(C)(4) requires
a remand for resentencing, there is no reason to address appellant's remaining arguments
pertaining to sentencing as they are moot. Accordingly, appellant's second assignment of
error is sustained.
{¶ 25} In his third assignment of error, appellant argues the assistant prosecuting
attorney committed misconduct by insinuating during closing arguments that the defense
developed by appellant at trial was not truthful.
{¶ 26} The test for prosecutorial misconduct during closing arguments is whether
the remarks were improper and, if so, whether they prejudicially affected substantial
No. 13AP-901 10
rights of the defendant. State v. Hudson, 10th Dist. No. 13AP-702, 2014-Ohio-1712, ¶ 16,
citing State v. Norman, 10th Dist. No. 12AP-505, 2013-Ohio-1908, ¶ 15; State v. Smith, 14
Ohio St. 3d 13, 14 (1984). Prosecutorial misconduct constitutes reversible error only in
rare instances. Id., citing State v. Keenan, 66 Ohio St. 3d 402, 405 (1993). " ' "A
conviction will be reversed only where it is clear beyond a reasonable doubt that, absent
the prosecutor's comments, the jury would not have found appellant guilty." ' " Id.,
quoting State v. Brooks, 10th Dist. No. 06AP-74, 2006-Ohio-5784, ¶ 13, quoting State v.
Benge, 75 Ohio St. 3d 136, 141 (1996), citing State v. Loza, 71 Ohio St. 3d 61, 78 (1994).
{¶ 27} In support of his contention, appellant directs our attention to the following
three emphasized comments:
You know, we do any kind of job, we always try to create a
metaphor for what we do, try and explain it another way to
people. There's like a lot of metaphors out there for what we
do here. And you know, I mean, some people, oh, it's theater,
it's war, it's sport. I mean, all kinds of things you could
describe this as, but it's not. This isn't theater. This isn't a
game. This isn't war. There's an expression, "The first
causality [sic] in war is the truth." And say, no, this is -- this
is, you know, a fact finding exercise. That's what we're doing
here. There's no metaphor for this. There's no other way to
explain it. We're not here for entertainment. We're not here
for a game.
Now, we're here to find what really happened, what is the
truth or what happened. That's why there's this burden of
reasonable doubt. We want to know what really happened in
this case.
(Emphasis added.) (Tr. Vol. IV, 569-70.)
{¶ 28} Appellant's references to portions of the assistant prosecutor's closing
arguments were taken out of context. The assistant prosecutor did not reference any
aspect of appellant's defense when making the comments in question. It appears the
assistant prosecutor was merely trying to describe the criminal trial process in a way that
might resonate with the jury. After reviewing the remarks in full, we do not find them to
be improper or prejudicial. Furthermore, appellant did not object to the comments when
they were made and, thus, forfeited all but plain error. State v. Kenney, 10th Dist. No.
09AP-231, 2010-Ohio-3740, ¶ 11, citing State v. Williams, 79 Ohio St. 3d 1, 12 (1997).
No. 13AP-901 11
{¶ 29} Appellant does not argue and we do not find that, absent the comments in
question, it is clear beyond a reasonable doubt the jury would not have found appellant
guilty. Applying the plain error standard, we conclude the assistant prosecutor did not
commit misconduct during closing. Accordingly, appellant's third assignment of error is
overruled.
{¶ 30} In appellant's fourth assignment of error, he asserts the trial court erred by
denying his motion for a mistrial. Appellant made the motion during Cox's testimony.
Cox was discussing documents available through CCC's internet portal. Appellant
subpoenaed any and all portal records previous to trial, but Cox did not produce
everything available claiming he was not given enough time. Cox offered to access and
display the information during trial, which prompted appellant's motion for a mistrial.
In an earlier sidebar on the issue, appellant's trial counsel stated, "I'm more than satisfied
with the evidence that we have in our favor." (Tr. Vol. III, 458.) Counsel explained it was
part of her trial strategy to emphasize for the jury the lack of evidence against appellant
and that Cox was not cooperative with the defense. Appellant argues on appeal "the
documents were subpoenaed but not provided and the attempt to testify to discoverable
material was highly prejudicial. The court overruled the motion for mistrial, which
violated the holding and spirit of Brady v. Maryland 373 U.S. 83 (1963), as well as Rule
16(B) of the Rules of Criminal Procedure." (Appellant's Brief, 18.) We disagree.
{¶ 31} The decision whether or not to grant a mistrial rests with the sound
discretion of the trial court and will not be disturbed absent an abuse of that discretion.
State v. Bigsby, 7th Dist. No. 12 MA 74, 2013-Ohio-5641, ¶ 58, citing State v. Sage, 31
Ohio St. 3d 173, 182 (1997). In order to find an abuse of discretion, we must determine the
trial court's decision was unreasonable, arbitrary or unconscionable and not merely an
error of law or judgment. State v. Jones, 10th Dist. No. 12AP-1091, 2014-Ohio-674, ¶ 10,
citing Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219 (1983). " 'A mistrial should not be
ordered in a criminal case merely because some error or irregularity has intervened,
unless the substantial rights of the accused or the prosecution are adversely affected.' "
State v. Walburg, 10th Dist. No. 10AP-1087, 2011-Ohio-4762, ¶ 52, quoting State v.
Reynolds, 49 Ohio App. 3d 27, 33 (2d Dist.1988). A mistrial needs to be declared only
when the ends of justice so require and a fair trial is no longer possible. State v. Hunt,
No. 13AP-901 12
10th Dist. No. 12AP-103, 2013-Ohio-5326, ¶ 69, citing State v. Harris, 10th Dist. No.
04AP-612, 2005-Ohio-4676, ¶ 27; State v. Franklin, 62 Ohio St. 3d 118, 127 (1991).
"Our review of a decision on a motion for mistrial defers to the trial court's judgment
because it is in the best position to determine whether the circumstances warrant
declaration of a mistrial." State v. McKinney, 10th Dist. No. 13AP-211, 2013-Ohio-5394, ¶
12, citing State v. Glover, 35 Ohio St. 3d 18, 19 (1988).
{¶ 32} Crim.R. 16(B) states: "Upon receipt of a written demand for discovery by the
defendant, * * * the prosecuting attorney shall provide * * * items related to the particular
case * * * within the possession of, or reasonably available to the state." Appellant does
not allege the documentation in question was ever the subject of a written demand for
discovery submitted to the state, or that the documentation was possessed by or
reasonably available to the state. Appellant attempted to obtain the documentation
directly from CCC via subpoena. Cox admitted the company did not fully comply with
appellant's request for any and all portal records. However, appellant's trial counsel was
satisfied with the documentation received, and was content to paint Cox as uncooperative.
Under these circumstances and considering the state's lack of involvement, we do not find
appellant's accusations, pursuant to Crim.R. 16(B), persuasive.
{¶ 33} Appellant's reference to the state's obligation under Brady is erroneous.
"Brady only applies when a defendant discovers post-trial that the State has withheld
exculpatory evidence." State v. Vu, 9th Dist. No. 11CA0042-M, 2012-Ohio-746, ¶ 39.
That is not the case here. To the extent appellant is claiming the state withheld evidence,
he was aware of it before and during trial. Therefore, Brady does not apply. Id., citing
State v. Adams, 9th Dist. No. 07CA0086, 2008-Ohio-4939, ¶ 10-12. Moreover, following
the trial court's ruling on appellant's motion, the court instructed the jury to disregard
Cox's comments about accessing documentation during trial that was previously
requested but not produced. We presume the jury followed the curative instructions.
Harris at ¶ 27, citing State v. Garner, 74 Ohio St. 3d 49, 59 (1995).
{¶ 34} Thus, we do not find that the trial court abused its discretion in denying
appellant's motion for a mistrial or that appellant was prejudiced by the circumstances in
question. Accordingly, appellant's fourth assignment of error is overruled.
No. 13AP-901 13
IV. CONCLUSION
{¶ 35} Appellant's first, third, and fourth assignments of error are overruled, and
appellant's second assignment of error is sustained. Accordingly, appellant's convictions
are affirmed, and this matter is remanded to the Franklin County Court of Common Pleas
for resentencing in accordance with the law and consistent with this decision.
Judgment affirmed in part and reversed in part;
cause remanded for resentencing.
BROWN and LUPER SCHUSTER, JJ., concur.