[Cite as In re P.K., 2019-Ohio-2310.]
COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN THE MATTER OF: P.K. : JUDGES: : Hon. John W. Wise, P.J. ALLEGED DELINQUENT CHILD : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, J. : : : Case No. 19 CA 07 : : OPINION
CHARACTER OF PROCEEDING: Appeal from the Guernsey County Court of Common Pleas, Juvenile Division, Case No. 18JA00437
JUDGMENT: Affirmed
DATE OF JUDGMENT: June 10, 2019
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee P.K.
JAMES R. SKELTON STEPHANIE L. CHURCH MELISSA R. BRIGHT Tribbie, Plummer, Church & LaPlante, LLC Assistant Guernsey County 139 West Eighth Street Prosecuting Attorneys P.O. Box 640 627 Wheeling Avenue Cambridge, Ohio 43725 Cambridge, Ohio 43725 Guernsey County, Case No. 19 CA 07 2
Baldwin, J.
{¶1} Appellant State of Ohio appeals from the March 4, 2019 Journal Entry of
the Guernsey County Court of Common Pleas, Juvenile Division.
STATEMENT OF THE FACTS AND CASE
{¶2} On November 5, 2018, a complaint was filed alleging that P.K. was a
delinquent child. The complaint alleged that P.K. had walked away from law enforcement
officers three times after being asked to come towards the officers, had pulled her hands
from the arresting officers, and had pulled her left hand free from handcuffs and that the
offense, if committed by an adult, would constitute a violation of R.C. 2921.31, obstructing
official business, a misdemeanor of the second degree. P.K. had run away from her
grandmother’s home and refused to return home. At the arraignment on December 10,
2018, a technical denial was entered by the trial court on behalf of P.K.
{¶3} On December 21, 2018, appellee’s counsel filed a Juv.R. 24 discovery
request. Appellant, acting through the Guernsey County Prosecutor’s Office, filed a
response to the request on January 4, 2019. The response included a 4 page report from
the Cambridge Police Department and the names of the two officers involved in the case.
No officer body camera recordings were provided.
{¶4} As memorialized in a letter dated January 17, 2019 from an Assistant
Prosecuting Attorney to appellee’s counsel, appellee’s counsel was advised that there
were no video recordings available for the incident involving P.K. Attached to the letter
was a copy of a text conversation between the Prosecuting Attorney’s Secretary and
Sergeant Gebhart of the Cambridge Police Department stating that there was no video. Guernsey County, Case No. 19 CA 07 3
{¶5} The trial court, as memorialized in a Journal Entry filed on January 22, 2019,
ordered that all discovery was to be completed within fourteen (14) days. On January 31,
2019, appellee P.K. filed a discovery compliance pursuant to Juv.R. 24 indicating that
the two recordings might be used at the trial in the matter.
{¶6} On February 11, 2019, appellee’s counsel filed a Motion to Dismiss or, in
the Alternative, Motion for Sanctions. Appellee’s counsel, in such motion, stated that she
had obtained the video recordings on or about January 30, 2019 pursuant to a public
records request to the Cambridge Police Department. Counsel argued that appellant’s
failure to provide the recordings constituted a violation of the requirements of in Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and asked that the matter
be dismissed or other appropriate sanctions imposed. Appellant filed a memorandum, in
opposition to appellees’ motion on February 22, 2019 arguing that no Brady violation had
occurred because the recordings were not exculpatory and no prejudice had occurred.
Appellee’s counsel filed a reply on February 28, 2019.
{¶7} Pursuant to a Journal Entry filed on March 4, 2019, the trial court denied the
Motion to Dismiss, but granted the alternative Motion for Sanctions and ordered the
Guernsey County Prosecutor’s Office to pay the attorney fees of appellee’s attorney for
the time required to discover the body camera video and the time spent preparing the
filing the Motion to Dismiss and reply. The trial court, in its Journal Entry, found that the
evidence had been suppressed by the State of Ohio, but that there had been no
suggestion that the evidence was willfully suppressed. The trial court stated, in relevant
part, as follows: “However, it does appear that a halfhearted effort was made to discover
evidence. It is well known that the Cambridge Police Department Officers have body Guernsey County, Case No. 19 CA 07 4
cameras on their person. It is also well known that they are to have cameras on when an
incident, stop, or investigation is taking place.” The trial court further found that P.K. was
not prejudiced because the videos were discovered by defense counsel fourteen days
prior to trial and that, therefore, P.K. was not denied due process. The trial court, in its
Journal Entry, further stated, in relevant part, as follows:
However, having found that the alleged delinquent was not
prejudiced does not excuse the State of Ohio’s lack of effort in this matter.
Defense Counsel is an experienced lawyer and former prosecutor. She is
aware of the policies of the various law enforcement agencies in this County
and knows who to call to find information. A less experienced attorney may
not know that information and could result in their clients not receiving the
Due Process that they are entitled to under the laws of this Country.
{¶8} Appellant State of Ohio now appeals from the trial court’s March 4, 2019
Journal Entry, raising the following assignments of error on appeal:
{¶9} “I. THE TRIAL COURT IMPROPERLY ORDERED THE GUERNSEY
COUNTY PROSECUTOR’S OFFICE TO PAY ATTORNEY FEES, AS A BRADY
MOTION DOES NOT OFFER LEGAL FEES AS AN APPROPRIATE REMEDY FOR THE
COURT.”
{¶10} “II. UNDER THE RULES OF CRIMINAL PROCEDURE ONLY MOTION
FOR A CONTEMPT WOULD ALLOW FOR THE AWARD OF LEGAL FEES AND IF THE
JUDGE CONSTRUED THE MOTION AS A CONTEMPT MOTION, HE STILL COULD
NOT AWARD LEGAL FEES AS HE FOUND THIS MOTION NOT WELL TAKEN AND
DENIED THE SAME.” Guernsey County, Case No. 19 CA 07 5
I, II
{¶11} Appellant, in its two assignments of error, argues that the trial court had no
authority to order the payment of attorney fees as a sanction or remedy for a Brady
violation. We disagree.
{¶12} Crim.R. 16 provides, in relevant part, as follows:
(L) Regulation of Discovery.
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. (Emphasis added).
{¶13} Furthermore, under Juv.R. 24(C), the trial court can impose sanctions for
failure to comply with discovery orders. The court may grant a continuance, prohibit the
person from introducing in evidence the material not disclosed, or “enter such other order
as it deems just under the circumstances”. Juv.R. 24(C). A trial court is vested with
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[Cite as In re P.K., 2019-Ohio-2310.]
COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN THE MATTER OF: P.K. : JUDGES: : Hon. John W. Wise, P.J. ALLEGED DELINQUENT CHILD : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, J. : : : Case No. 19 CA 07 : : OPINION
CHARACTER OF PROCEEDING: Appeal from the Guernsey County Court of Common Pleas, Juvenile Division, Case No. 18JA00437
JUDGMENT: Affirmed
DATE OF JUDGMENT: June 10, 2019
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee P.K.
JAMES R. SKELTON STEPHANIE L. CHURCH MELISSA R. BRIGHT Tribbie, Plummer, Church & LaPlante, LLC Assistant Guernsey County 139 West Eighth Street Prosecuting Attorneys P.O. Box 640 627 Wheeling Avenue Cambridge, Ohio 43725 Cambridge, Ohio 43725 Guernsey County, Case No. 19 CA 07 2
Baldwin, J.
{¶1} Appellant State of Ohio appeals from the March 4, 2019 Journal Entry of
the Guernsey County Court of Common Pleas, Juvenile Division.
STATEMENT OF THE FACTS AND CASE
{¶2} On November 5, 2018, a complaint was filed alleging that P.K. was a
delinquent child. The complaint alleged that P.K. had walked away from law enforcement
officers three times after being asked to come towards the officers, had pulled her hands
from the arresting officers, and had pulled her left hand free from handcuffs and that the
offense, if committed by an adult, would constitute a violation of R.C. 2921.31, obstructing
official business, a misdemeanor of the second degree. P.K. had run away from her
grandmother’s home and refused to return home. At the arraignment on December 10,
2018, a technical denial was entered by the trial court on behalf of P.K.
{¶3} On December 21, 2018, appellee’s counsel filed a Juv.R. 24 discovery
request. Appellant, acting through the Guernsey County Prosecutor’s Office, filed a
response to the request on January 4, 2019. The response included a 4 page report from
the Cambridge Police Department and the names of the two officers involved in the case.
No officer body camera recordings were provided.
{¶4} As memorialized in a letter dated January 17, 2019 from an Assistant
Prosecuting Attorney to appellee’s counsel, appellee’s counsel was advised that there
were no video recordings available for the incident involving P.K. Attached to the letter
was a copy of a text conversation between the Prosecuting Attorney’s Secretary and
Sergeant Gebhart of the Cambridge Police Department stating that there was no video. Guernsey County, Case No. 19 CA 07 3
{¶5} The trial court, as memorialized in a Journal Entry filed on January 22, 2019,
ordered that all discovery was to be completed within fourteen (14) days. On January 31,
2019, appellee P.K. filed a discovery compliance pursuant to Juv.R. 24 indicating that
the two recordings might be used at the trial in the matter.
{¶6} On February 11, 2019, appellee’s counsel filed a Motion to Dismiss or, in
the Alternative, Motion for Sanctions. Appellee’s counsel, in such motion, stated that she
had obtained the video recordings on or about January 30, 2019 pursuant to a public
records request to the Cambridge Police Department. Counsel argued that appellant’s
failure to provide the recordings constituted a violation of the requirements of in Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and asked that the matter
be dismissed or other appropriate sanctions imposed. Appellant filed a memorandum, in
opposition to appellees’ motion on February 22, 2019 arguing that no Brady violation had
occurred because the recordings were not exculpatory and no prejudice had occurred.
Appellee’s counsel filed a reply on February 28, 2019.
{¶7} Pursuant to a Journal Entry filed on March 4, 2019, the trial court denied the
Motion to Dismiss, but granted the alternative Motion for Sanctions and ordered the
Guernsey County Prosecutor’s Office to pay the attorney fees of appellee’s attorney for
the time required to discover the body camera video and the time spent preparing the
filing the Motion to Dismiss and reply. The trial court, in its Journal Entry, found that the
evidence had been suppressed by the State of Ohio, but that there had been no
suggestion that the evidence was willfully suppressed. The trial court stated, in relevant
part, as follows: “However, it does appear that a halfhearted effort was made to discover
evidence. It is well known that the Cambridge Police Department Officers have body Guernsey County, Case No. 19 CA 07 4
cameras on their person. It is also well known that they are to have cameras on when an
incident, stop, or investigation is taking place.” The trial court further found that P.K. was
not prejudiced because the videos were discovered by defense counsel fourteen days
prior to trial and that, therefore, P.K. was not denied due process. The trial court, in its
Journal Entry, further stated, in relevant part, as follows:
However, having found that the alleged delinquent was not
prejudiced does not excuse the State of Ohio’s lack of effort in this matter.
Defense Counsel is an experienced lawyer and former prosecutor. She is
aware of the policies of the various law enforcement agencies in this County
and knows who to call to find information. A less experienced attorney may
not know that information and could result in their clients not receiving the
Due Process that they are entitled to under the laws of this Country.
{¶8} Appellant State of Ohio now appeals from the trial court’s March 4, 2019
Journal Entry, raising the following assignments of error on appeal:
{¶9} “I. THE TRIAL COURT IMPROPERLY ORDERED THE GUERNSEY
COUNTY PROSECUTOR’S OFFICE TO PAY ATTORNEY FEES, AS A BRADY
MOTION DOES NOT OFFER LEGAL FEES AS AN APPROPRIATE REMEDY FOR THE
COURT.”
{¶10} “II. UNDER THE RULES OF CRIMINAL PROCEDURE ONLY MOTION
FOR A CONTEMPT WOULD ALLOW FOR THE AWARD OF LEGAL FEES AND IF THE
JUDGE CONSTRUED THE MOTION AS A CONTEMPT MOTION, HE STILL COULD
NOT AWARD LEGAL FEES AS HE FOUND THIS MOTION NOT WELL TAKEN AND
DENIED THE SAME.” Guernsey County, Case No. 19 CA 07 5
I, II
{¶11} Appellant, in its two assignments of error, argues that the trial court had no
authority to order the payment of attorney fees as a sanction or remedy for a Brady
violation. We disagree.
{¶12} Crim.R. 16 provides, in relevant part, as follows:
(L) Regulation of Discovery.
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. (Emphasis added).
{¶13} Furthermore, under Juv.R. 24(C), the trial court can impose sanctions for
failure to comply with discovery orders. The court may grant a continuance, prohibit the
person from introducing in evidence the material not disclosed, or “enter such other order
as it deems just under the circumstances”. Juv.R. 24(C). A trial court is vested with
discretion when faced with a failure to comply with discovery in a juvenile case. In re
Johnson, 61 Ohio App.3d 544, 548, 573 N.E.2d 184 (8th Dist.1989). A juvenile court's
decision regarding a discovery dispute is therefore reviewed by an appellate court under
an abuse of discretion standard. See id. In order to find an abuse of discretion, we must
determine the trial court's decision was unreasonable, arbitrary or unconscionable and Guernsey County, Case No. 19 CA 07 6
not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450
N.E.2d 1140 (1983).
{¶14} In the case sub judice, we find that the trial court did not abuse its discretion
in ordering the Guernsey County Prosecutor’s Office to pay appellee’s attorney’s fees as
a result of appellant’s failure to provide discovery materials because the trial court had
broad authority to “enter such other order as it deems just under the circumstances”. The
trial court, as memorialized in a Journal Entry filed on January 22, 2019, ordered that all
discovery was to be completed within fourteen (14) days. However, after appellant failed
to produce the videotape recordings, appellee’s counsel was forced to obtain them
through a public records request submitted on January 25, 2019. We find that, under the
circumstances, the trial court’s decision was not arbitrary, unconscionable or
unreasonable. We note that both the United States and Ohio Supreme Courts have held
that the obligation of the prosecution to share favorable material evidence with the
defense extends to information, such as in the case sub judice, not in the actual
possession of the prosecution but within the knowledge of “others acting on the
government's behalf.” State v. Sanders, 92 Ohio St.3d 245, 2001- Ohio-189, 750 N.E.2d
90), quoting Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 1567, 131 L.Ed.2d 490,
508 (1995). Brady suppression occurs when the government fails to turn over even
evidence that is “known only to police investigators and not to the prosecutor,” Kyles, 514
U.S., at 438, 115 S.Ct. 1555. See id., at 437, 115 S.Ct. 1555 (“[T]he individual prosecutor
has a duty to learn of any favorable evidence known to the others acting on the
government's behalf in the case, including the police”).
{¶15} Appellant’s two assignments of error are, therefore, overruled. Guernsey County, Case No. 19 CA 07 7
{¶16} Accordingly, the judgment of the Guernsey County Court of Common Pleas,
Juvenile Division is affirmed.
By: Baldwin, J.
Wise, John, P.J. and
Wise, Earle, J. concur.