State v. Gregory

[Cite as State v. Gregory, 2015-Ohio-4901.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 27523
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
DAVID A. GREGORY, JR. COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 2014 03 0851
DECISION AND JOURNAL ENTRY
Dated: November 25, 2015
MOORE, Judge.
{¶1} Defendant-Appellant David A. Gregory, Jr. appeals from his convictions in the
Summit County Court of Common Pleas. We affirm.
I.
{¶2} In March 2014, Mr. Gregory was indicted on one count of illegal assembly or
possession of chemicals (lithium batteries) for the manufacture of drugs (methamphetamine) in
violation of R.C. 2925.041(A). Because the indictment alleged that Mr. Gregory committed the
offense in the vicinity of Barberton High School, the offense was elevated to a second-degree
felony. See R.C. 2925.041(C). Additionally, it was alleged that Mr. Gregory had previously
been convicted of violating R.C. 2925.041(A), 2919.22(B)(6), or 2925.04(A); thus, increasing
the potential penalty associated with the offense. See R.C. 2925.041(C)(2). A forfeiture
specification accompanied the illegal assembly charge. Count two alleged that Mr. Gregory
violated R.C. 2925.55(B) and 2923.02, the statutes which together prohibit the attempted
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purchase of more than nine grams of pseudoephedrine products in a 30-day period. A
supplemental indictment was subsequently filed, charging Mr. Gregory with one count of the
intimidation of a crime victim or witness.
{¶3} The matter proceeded to a jury trial, after which, the jury found Mr. Gregory
guilty of count one, involving the illegal assembly or possession of chemical for the manufacture
of drugs, and count two, involving the attempted possession of prohibited amounts of
pseudoephedrine products. The jury found him not guilty of the intimidation of a crime victim
or witness. The trial court sentenced Mr. Gregory to an aggregate term of five years in prison.
{¶4} Mr. Gregory has appealed, raising four assignments of error for our review, which
will be addressed out of sequence to facilitate our review.
II.
ASSIGNMENT OF ERROR II
[MR.] GREGORY’S ILLEGAL ASSEMBLY OF CHEMICALS CONVICTION
WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE, WHICH VIOLATED
[MR.] GREGORY’S RIGHTS UNDER THE 14TH AMENDMENT AND
MANDATES REVERSAL.
{¶5} Mr. Gregory argues in his second assignment of error that his conviction for
illegal assembly or possession of chemicals for the manufacture of drugs was based upon
insufficient evidence. Specifically, he maintains that the element of “in the vicinity of a school”
required that the State establish that Mr. Gregory was reckless with respect to whether, in
committing the offense, he was “in the vicinity of a school.” In light of Mr. Gregory’s limited
argument, and because we conclude that Mr. Gregory’s mental state was irrelevant in
determining whether he committed the offense “in the vicinity of a school[,]” we overrule his
assignment of error.
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{¶6} The issue of whether a conviction is supported by sufficient evidence is a question
of law, which we review de novo. State v. Thompkins, 78 Ohio St. 3d 380, 386 (1997).
An appellate court’s function when reviewing the sufficiency of the evidence to
support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind
of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is
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.
{¶7} Mr. Gregory only challenges his conviction for violating R.C. 2925.041(A), (C),
and only does so on a limited basis.
{¶8} R.C. 2925.041(A) provides that “[n]o person shall knowingly assemble or possess
one or more chemicals that may be used to manufacture a controlled substance in schedule I or II
with the intent to manufacture a controlled substance in schedule I or II in violation of section
2925.04 of the Revised Code.” R.C. 2925.041(C) indicates that, “[i]f the offense was committed
in the vicinity of a juvenile or in the vicinity of a school, illegal assembly or possession of
chemicals for the manufacture of drugs is a felony of the second degree[.]”
{¶9} R.C. 2925.01(P) provides that:
An offense is “committed in the vicinity of a school” if the offender commits the
offense on school premises, in a school building, or within one thousand feet of
the boundaries of any school premises, regardless of whether the offender knows
the offense is being committed on school premises, in a school building, or within
one thousand feet of the boundaries of any school premises.
(Emphasis added.)
{¶10} Mr. Gregory does not dispute that he was within 1000 feet of the boundaries of
any school premises; instead, he argues that he must have been reckless about being in the
vicinity of the school.
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{¶11} “[R]ecklessness is the catchall culpable mental state for criminal statutes that fail
to mention any degree of culpability, except for strict liability statutes, where the accused’s
mental state is irrelevant. However, for strict liability to be the mental standard, the statute must
plainly indicate a purpose to impose it.” State v. Lozier, 101 Ohio St. 3d 161, 2004-Ohio-732, ¶
21. In Lozier, the Ohio Supreme Court concluded that language very similar to that in current
R.C. 2925.01(P), indicated that the General Assembly intended to impose strict liability with
respect to crimes committed “in the vicinity of a juvenile,” as defined in R.C. 2925.01(BB).
R.C. 2925.01(BB) provides that:
An offense is “committed in the vicinity of a juvenile” if the offender commits the
offense within one hundred feet of a juvenile or within the view of a juvenile,
regardless of whether the offender knows the age of the juvenile, whether the
offender knows the offense is being committed within one hundred feet of or
within view of the juvenile, or whether the juvenile actually views the commission
of the offense.
(Emphasis added.)
{¶12} Given that very similar phrasing is used in the current version of R.C. 2925.01(P),
we conclude that the General Assembly plainly intended to impose strict liability for a violation
R.C. 2925.041(A) committed in the vicinity of a school. See Lozier at ¶ 21, 36.
{¶13} It is true that, the Supreme Court in Lozier, in evaluating a former version of R.C.
2925.01(P), concluded that the General Assembly did not intend to impose strict liability for
selling LSD in the vicinity of a school. However, the version of R.C. 2925.01(P) in effect at the
time only provided that, “[a]n offense is ‘committed in the vicinity of a school’ if the offender
commits the offense on school premises, in a school building, or within one thousand feet of the
boundaries of any school premises.” See Lozier at ¶ 38. Shortly after Lozier was decided, the
General Assembly amended R.C. 2925.01(P) to include the language, “regardless of whether the
offender knows the offense is being committed on school premises, in a school building, or
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within one thousand feet of the boundaries of any school premises[,]” thus, altering the offense
to a strict liability offense. See R.C. 2925.01(P); see also State v. Horner, 126 Ohio St. 3d 466,
2010-Ohio-3830, ¶ 64, fn. 2 (Lanzinger, J., concurring in part and dissenting in part) (“R.C.
2925.01(P) was amended shortly after Lozier was decided to add language similar to that in
division (BB), making it explicit that the offender need not be aware that he is near a school to be
guilty of the offense.”); State v. Stigall, 6th Dist. Lucas No. L-14-1053, 2015-Ohio-137, ¶ 12.
Thus, the State was not required to demonstrate that Mr. Gregory was reckless with respect to
whether he was within 1000 feet of the boundaries of any school premises.
{¶14} Given that Mr. Gregory’s assignment of error is based solely on the argument that
the State was required to prove recklessness, we overrule his argument on that basis. Mr.
Gregory’s second assignment of error is overruled.
ASSIGNMENT OF ERROR III
[MR.] GREGORY’S ILLEGAL ASSEMBLY OF CHEMICALS CONVICTION
WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, AND
MUST BE REVERSED.
{¶15} Mr. Gregory asserts in his third assignment of error that his conviction for the
illegal assembly or possession of chemicals for the manufacture of drugs is against the manifest
weight of the evidence. We do not agree.
{¶16} When a defendant asserts that his conviction is against the manifest weight of the
evidence:
an appellate court must review the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of witnesses and determine
whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.
State v. Otten, 33 Ohio App. 3d 339, 340 (9th Dist.1986).
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{¶17} Mr. Gregory again only challenges his conviction for illegal assembly or
possession of chemicals to manufacture drugs. He first argues that the State was required to
prove that he was reckless with respect to whether he was in the vicinity of a school. We have
previously resolved that issue above. In addition, Mr. Gregory asserts that Frank Boychi’s
testimony was not credible, and because of that, his conviction is against the manifest weight of
the evidence.
{¶18} R.C. 2925.041(A) states that, “[n]o person shall knowingly assemble or possess
one or more chemicals that may be used to manufacture a controlled substance in schedule I or II
with the intent to manufacture a controlled substance in schedule I or II in violation of section
2925.04 of the Revised Code.” “The assembly or possession of a single chemical that may be
used in the manufacture of a controlled substance in schedule I or II, with the intent to
manufacture a controlled substance in either schedule, is sufficient to violate this section.” R.C.
2925.041(B). Methamphetamine is a schedule II controlled substance. See R.C. 2925.01(A);
R.C. 3719.01(C), (BB); R.C. 3719.41. “A person acts knowingly, regardless of his purpose,
when he is aware that his conduct will probably cause a certain result or will probably be of a
certain nature. A person has knowledge of circumstances when he is aware that such
circumstances probably exist.” Former R.C. 2901.22(B). R.C. 2925.041(C) elevates the offense
to a second-degree felony if the offense is committed in the vicinity of a school.
{¶19} On January 21, 2014, Detective Paul Laurella of the Barberton Police Department
Narcotics Division was conducting surveillance on Mr. Gregory’s house for suspected drug
activity. Detective Laurella was undercover and was observing events from a business across the
street from Mr. Gregory’s house. Detective Laurella observed Mr. Gregory exit the house with a
full Save-A-Lot grocery bag, which he placed in the car in the front passenger seat. Mr. Gregory
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went back into the house and came back out carrying a box that he put in backseat of the vehicle.
At the same time, Detective Laurella noticed a woman leave the house, get into a black car,
leave, drive a short distance away, return to Mr. Gregory’s house, sit in the car for a short time,
and then leave again. Detective Laurella testified that, in his experience, such behavior was
consistent with the behavior of someone involved in the drug trade, who was checking to see
whether the police were around in the area.
{¶20} Mr. Gregory left and Detective Laurella followed him in an unmarked car.
Detective Laurella alerted Officer Ben Hill, who was a uniformed patrol officer in a marked car,
of the activities in case Detective Laurella would need assistance. Mr. Gregory drove past
Barberton High School and ultimately stopped at 479 Glenn Street.
{¶21} Mr. Boychi testified to the events at 479 Glenn Street. Mr. Boychi had known
Mr. Gregory for many years, and had been living at Mr. Gregory’s house at the time of the
events at issue. According to Mr. Boychi, earlier that day, he and his friends Keith and Jennifer
Penrod left Mr. Gregory’s house and dropped Ms. Penrod off at an Akron court. Mr. Boychi and
Mr. Penrod then went and stole approximately 50 to 60 packs of lithium batteries before picking
up Ms. Penrod and driving to 479 Glenn Street. Mr. Boychi claimed that he stole the batteries to
give them to Mr. Gregory in exchange for paying off a debt Mr. Boychi owed Mr. Gregory and
to purchase more methamphetamine; Mr. Boychi was a methamphetamine addict.
{¶22} When the group arrived at 479 Glenn Street, Mr. Gregory was already there. Mr.
Boychi went into the house with the Save-A-Lot bag of batteries and told Mr. Gregory that he
had the batteries and that Mr. Gregory should take care of Mr. Boychi’s debt. In addition, Mr.
Boychi claimed that Mr. Gregory gave him a little over a gram of methamphetamine. According
to Mr. Boychi, he, Mr. Gregory, and Ms. Penrod then got in Mr. Gregory’s wife’s car to go back
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to Mr. Gregory’s house. Mr. Gregory drove, Ms. Penrod sat in the front passenger seat, and Mr.
Boychi sat in the back, on the passenger side of the vehicle. Mr. Boychi brought with him the
Save-A-Lot bag containing the batteries and some other items not related to the charges.
{¶23} Detective Laurella recognized one of the people who arrived at 479 Glenn Street
as Mr. Boychi, whom Detective Laurella discovered had outstanding arrest warrants. Detective
Laurella alerted Officer Hill and Officer Hill initiated a traffic stop of the vehicle approximately
five feet from the grounds of Barberton High School.
{¶24} Officer Hill informed Mr. Boychi of the warrants, arrested him, and placed him
the back of the police cruiser. Officer Hill searched the immediate area around Mr. Boychi and
found multiple packs of lithium batteries in a box on the back seat. Mr. Boychi testified that he
told officers that the batteries were not his and that they were Mr. Gregory’s. Officer Hill stated
that from his training, he “kn[e]w that lithium batteries [were] used in the process of
manufacturing methamphetamine.” He indicated that, typically those manufacturing
methamphetamine use three to four batteries in a batch, so, when he found so many batteries, to
him, that indicated it was a large scale methamphetamine operation. He had “never personally
seen th[at] many batteries at one time.”
{¶25} Because he was concerned about the possibility of there being other chemicals
related to the manufacture of methamphetamine in the car, he contacted Detective Laurella and
asked him to participate in the stop. Detective Laurella thereafter continued the search. Inside
the box, he found an empty potato chip bag full of batteries. At trial, Mr. Boychi denied bringing
the box or putting anything in the box in the backseat. On the floor of the back seat Detective
Laurella found a Save-a-Lot grocery bag that contained batteries. In total, 26 or 27 packs of
batteries were found in the car. Detective Laurella testified that the lithium metal in lithium
9
batteries is a required ingredient in the one-pot method of making methamphetamine. He also
testified that in all the methamphetamine labs he had investigated in the past, he had never seen
that many lithium batteries in one place as the amount found in the car. Additionally, Detective
Laurella found a small amount of methamphetamine on the floor of the backseat on the
passenger side. At trial, Mr. Boychi admitted that the methamphetamine found in the car was
his. No other chemicals used in the manufacture of methamphetamine were found in the car.
There was another Save-a-Lot grocery bag found on the floor of the front passenger seat, but that
bag only contained Ms. Penrod’s personal possessions. Ms. Penrod and Mr. Gregory were
searched and no items used in the manufacture of methamphetamine were found on their person.
Ms. Penrod and Mr. Gregory were allowed to leave and Mr. Gregory was not arrested until later.
{¶26} Detective Laurella testified that after searching NPLEx, which allows law
enforcement officers to determine how much and how frequently someone has purchased
pseudoephedrine products, he found that Mr. Gregory had, on more than one occasion, attempted
to purchase more than the amount of pseudoephedrine products authorized by law in a 30-day
period and was blocked from doing so. Detective Laurella indicated that pseudoephedrine is also
an essential ingredient in the one-pot method of manufacturing methamphetamine.
{¶27} Given all of the circumstances, including the presence of methamphetamine in the
car, the fact the Mr. Gregory tried to purchase more pseudoephedrine than authorized by law,
and the number of batteries found in the car, Detective Laurella believed that the batteries were
going to be used in the manufacture of methamphetamine.
{¶28} Detective Laurella testified that when Mr. Boychi originally spoke to the police,
he told the officers that Mr. Gregory bought the batteries from “Penrod.” Additionally, Mr.
Boychi originally told the police that the methamphetamine found in the car was Ms. Penrod’s,
10
not his. Mr. Boychi testified that he pleaded guilty to a violation of R.C. 2925.041(A) that was a
reduced charge and to possession of the methamphetamine, but indicated there were no promises
made with respect to what sentence he would receive.
{¶29} On appeal, Mr. Gregory asserts that Mr. Boychi’s testimony was not credible,
and, thus, the jury lost its way in convicting him of violating R.C. 2925.041.
{¶30} After a thorough and independent review of the record, we cannot say the jury
lost its way in finding Mr. Gregory guilty of violating R.C. 2925.041. The jury was able to hear
the testimony of Mr. Boychi and view his demeanor. The jury was aware of Mr. Boychi’s
involvement in the crimes and the trial court instructed the jury that if it found Mr. Boychi to be
an accomplice it should view his testimony with grave suspicion. Additionally, the jury was
instructed on complicity. While there were inconsistencies in the version of events that Mr.
Boychi originally told the police and the one he testified to at trial, we cannot say that the jury’s
resolution of credibility issues amounted to a manifest miscarriage of justice. We remain
mindful that “[e]valuating evidence and assessing credibility are primarily for the trier of fact.”
(Citations omitted.) State v. Bulls, 9th Dist. Summit No. 27029, 2015-Ohio-276, ¶ 17. Given
the evidence, it was not unreasonable for the trier of fact to conclude that Mr. Gregory
knowingly possessed the lithium batteries with the intent to manufacture methamphetamine, and
that he did so in the vicinity of a school. See R.C. 2925.041(A), (C). We overrule Mr. Gregory’s
third assignment of error.
ASSIGNMENT OF ERROR I
R.C. 2925.041(C) IS UNCONSTITUTIONALLY VAGUE AS APPLIED TO
[MR.] GREGORY, MANDATING REVERSAL OF HIS ILLEGAL
ASSEMBLY OF CHEMICALS CONVICTION.
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{¶31} Mr. Gregory argues in his first assignment of error that R.C. 2925.041(C) is
unconstitutionally vague as applied to him. While he did not raise this issue below, he maintains
that the error rises to the level of plain error.
{¶32} “The failure to challenge the constitutionality of a statute in the trial court forfeits
all but plain error on appeal, and the burden of demonstrating plain error is on the party asserting
it.” State v. Quarterman, 140 Ohio St. 3d 464, 2014-Ohio-4034, ¶ 2. “[W]e require a showing
that but for a plain or obvious error, the outcome of the proceeding would have been otherwise,
and reversal must be necessary to correct a manifest miscarriage of justice.” Id. at ¶ 16. “In
addition, * * * a forfeited constitutional challenge to a statute is subject to review where the
rights and interests involved may warrant it.” (Internal quotations and citations omitted.) Id.
{¶33} “Under the vagueness doctrine, statutes which do not fairly inform a person of
what is prohibited will be found unconstitutional as violative of due process.” State v. Carrick,
131 Ohio St. 3d 340, 2012-Ohio-608, ¶ 14, quoting State v. Reeder, 18 Ohio St. 3d 25, 26, (1985);
see also Johnson v. United States, __ U.S. __, 135 S. Ct. 2551, 2556 (2015). “However,
[i]mpossible standards of specificity are not required. * * * The test is whether the language
conveys sufficiently definite warning as to the proscribed conduct when measured by common
understanding and practices.” (Internal quotations and citations omitted.) Carrick at ¶ 14. “A
statute can be impermissibly vague for either of two independent reasons. First, if it fails to
provide people of ordinary intelligence a reasonable opportunity to understand what conduct it
prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory enforcement.”
In re D.B., 129 Ohio St. 3d 104, 2011-Ohio-2671, ¶ 22. “In an as-applied challenge, the
challenger contends that application of the statute in the particular context in which he has acted,
or in which he proposes to act, [is] unconstitutional.” (Internal quotations and citations omitted.)
12
Carrick at ¶ 16. “Thus, an as-applied challenge focuses on the particular application of the
statute.” Id.
{¶34} The details of Mr. Gregory’s argument are somewhat difficult to follow. Overall,
he is asserting that the phrase in R.C. 2925.041(C), “in the vicinity of a school,” which elevates
the crime to a second-degree felony, is vague as applied to him. We do not agree that Mr.
Gregory has demonstrated plain error.
{¶35} R.C. 2925.041(A) provides that, “[n]o person shall knowingly assemble or
possess one or more chemicals that may be used to manufacture a controlled substance in
schedule I or II with the intent to manufacture a controlled substance in schedule I or II in
violation of section 2925.04 of the Revised Code.” R.C. 2925.041(B) states, that “[t]he assembly
or possession of a single chemical that may be used in the manufacture of a controlled substance
in schedule I or II, with the intent to manufacture a controlled substance in either schedule, is
sufficient to violate this section.” R.C. 2925.041(C) instructs, in relevant part, that, “[i]f the
offense was committed in the vicinity of a juvenile or in the vicinity of a school, illegal assembly
or possession of chemicals for the manufacture of drugs is a felony of the second degree[.]” R.C.
2925.01(P) states that, “[a]n offense is ‘committed in the vicinity of a school’ if the offender
commits the offense on school premises, in a school building, or within one thousand feet of the
boundaries of any school premises, regardless of whether the offender knows the offense is being
committed on school premises, in a school building, or within one thousand feet of the
boundaries of any school premises.” Additionally, R.C. 2925.01 defines school, school
premises, and school building. See R.C. 2925.01(Q), (R), (S).
{¶36} Here, there was evidence that Mr. Gregory drove a vehicle containing 26 or 27
packs of lithium batteries, a required ingredient in the one-pot method of making
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methamphetamine, directly past Barberton High School. There was also sufficient evidence that
would allow one to infer that he intended to use the batteries to manufacture methamphetamine.
Further, there was testimony that Mr. Gregory was stopped within five feet from property
belonging to Barberton High School. A person of ordinary intelligence would understand that
R.C. 2925.041(C) proscribes Mr. Gregory’s conduct. See Columbus v. Kim, 118 Ohio St. 3d 93,
2008-Ohio-1817, ¶ 10-11. Accordingly, Mr. Gregory has not convinced us that the statue is void
for vagueness as applied to him.
{¶37} Mr. Gregory contends that the rule of lenity supports his argument. However, he
fails to explain precisely how the rule of lenity is pertinent. “The rule of lenity is a principle of
statutory construction that provides that a court will not interpret a criminal statute so as to
increase the penalty it imposes on a defendant if the intended scope of the statute is ambiguous.”
(Internal quotations and citations omitted.) State v. Davis, 139 Ohio St. 3d 122, 2014-Ohio-1615,
¶ 35. “The rule applies only to the construction of ambiguous statutes.” (Internal quotations
and citations omitted.) Id. Mr. Gregory has failed to explain how the statutes involved are
ambiguous; thus, we fail to see how the rule of lenity applies to his situation. See App.R.
16(A)(7).
{¶38} Mr. Gregory also argues that the legislative intent of the statute was to punish
only acts “being committed in a fixed location, chosen by the perpetrator[;]” not acts committed
by a person “in motion, driving on the public highways.” “To determine legislative intent, a
court must first consider the words used in a statute. When a statute’s language is clear and
unambiguous, a court must apply it as written. Further construction is required only when a
statute is unclear and ambiguous.” (Internal citations omitted.) State v. Pariag, 137 Ohio St. 3d
14
81, 2013-Ohio-4010, ¶ 10. Again, Mr. Gregory has not explained how the statues are
ambiguous, and we decline to develop his argument further. See App.R. 16(A)(7).
{¶39} Finally, Mr. Gregory contends that he was only found guilty of the enhancement
because police chose to stop his car in front of the school. It appears that Mr. Gregory argues
that the statute is subject to arbitrary enforcement, as according to Mr. Gregory, the police can
determine whether Mr. Gregory would be subject to a penalty enhancement by deciding where to
stop him. While it is true that the police stopped Mr. Gregory’s vehicle when he was within five
feet of the school grounds, it was Mr. Gregory who decided to drive past the school with the
batteries he intended to use to manufacture methamphetamine. There is nothing in the record
that suggests the police interfered with Mr. Gregory’s intended route and caused him to drive
past the school. The crime at issue lies not in being stopped by the police in the vicinity of the
school, it lies in committing the offense, i.e. possessing the chemical or chemicals, in the vicinity
of the school, with the intent to manufacture a controlled substance. See R.C. 2925.041(A), (C).
Accordingly, it was Mr. Gregory’s act of possessing batteries with the intention of
manufacturing methamphetamine in a car that he drove past a school that caused him to be found
guilty of violating the statue. Mr. Gregory has not met his burden of demonstrating plain error.
{¶40} Mr. Gregory’s first assignment of error is overruled.
ASSIGNMENT OF ERROR IV
[MR.] GREGORY’S RIGHTS TO A FAIR TRIAL AND DUE PROCESS
UNDER THE FEDERAL AND OHIO CONSTITUTIONS AS ENUMERATED
IN BRADY V. MARYLAND WERE VIOLATED WHEN THE STATE
WITHHELD POTENTIALLY EXCULPATORY EVIDENCE FROM [MR.]
GREGORY’S COUNSEL, MERITING REVERSAL OF [MR.] GREGORY’S
CONVICTIONS.
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{¶41} Mr. Gregory asserts in his fourth assignment of error that he was denied his right
to a fair trial because the State withheld potentially exculpatory evidence from Mr. Gregory’s
counsel in violation of Brady v. Maryland, 373 U.S. 83 (1963). We do not agree.
{¶42} “The prosecutor must * * * provide defendants any evidence that is favorable to
them whenever that evidence is material either to their guilt or punishment.” State v. Pickens,
141 Ohio St. 3d 462, 2014-Ohio-5445, ¶ 96, citing Brady at 87. “Evidence is considered material
when there is a reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” (Internal quotations and citation omitted.)
Pickens at ¶ 96.
{¶43} “Brady generally does not apply to delayed disclosure of exculpatory
information, but only to a complete failure to disclose. Delay only violates Brady when the
delay itself causes prejudice.” (Internal citation and quotations omitted.) State v. Osie, 140 Ohio
St.3d 131, 2014-Ohio-2966, ¶ 155. “[T]he philosophical underpinnings of Brady support the
conclusion that even disclosure of potentially exculpatory evidence during trial may constitute a
due process violation if the late timing of the disclosure significantly impairs the fairness of the
trial.” (Internal quotations omitted.) Pickens at ¶101, quoting State v. Iacona, 93 Ohio St. 3d 83,
100 (2001). “Even where information may be exculpatory, “‘[n]o due process violation occurs
as long as Brady material is disclosed to a defendant in time for its effective use at trial.’”
Pickens at ¶ 101, quoting Iacona at 110, quoting United States v. Smith Grading & Paving, Inc.,
760 F.2d 527, 532 (4th Cir.1985). “The defendant has the burden to prove a Brady violation
rising to the level of a due-process violation.” Pickens at ¶ 102.
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{¶44} Mr. Gregory claims that the State failed to disclose, until after Mr. Boychi
testified at trial, a police report dated January 22, 2014, which allegedly contained a statement by
Mr. Boychi to the police. He asserts that the report “went directly to [Mr. Boychi’s] credibility.”
As an initial matter, we note that it is not clear that the State failed to disclose the report. The
State maintained at trial that the report had been disclosed, while Mr. Gregory’s counsel
maintained that he had not seen it. Near the end of the discussion, Mr. Gregory’s counsel asked
to speak with the trial court off the record and, following that discussion, the report is not
brought up again. Nothing in the record suggests that Mr. Gregory’s counsel moved for a
continuance or sought to have Mr. Boychi retake the stand. Additionally, several documents that
appear to be police reports and which relay statements of Mr. Boychi were filed as part of the
trial court record months before trial; some of those documents bear January 22, 2014 dates. It is
unclear, however, whether any of those documents represent the allegedly withheld report; the
contents of the report at issue were not proffered at trial or admitted into evidence.
{¶45} Assuming without deciding that there was a delay in disclosing the report, and
that the contents were Brady material, Mr. Gregory has not explained how the delayed disclosure
prejudiced him. See Osie at ¶ 155; see App.R. 16(A)(7). We are not inclined to develop an
argument on his behalf. See Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998 WL
224934, *8 (May 6, 1998).
{¶46} Mr. Gregory’s fourth assignment of error is overruled.
III.
{¶47} Mr. Gregory’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
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There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
HENSAL, P. J.
WHITMORE, J.
CONCUR.
APPEARANCES:
JACQUENETTE S. CORGAN, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.